ADVANCE PERSONAL PLANNING REGULATIONS 2014

Advance personal plan. Although the Regulations do not define this term (it is defined in the Act), regulation 2 specifies the compulsory information the plan must contain. At minimum it must list the adult’s full name, date of birth, and residential address. If the plan appoints one or more decision makers, it must also state each appointed person’s full name, residential address, phone number (if any), and email address (if any). The plan itself may be broader than these requirements,it may cover health care, lifestyle, or financial matters,but these core details are mandatory. The absence of any of these items could render the plan non‑compliant with the Act’s formal requirements and risk invalidity or refusal of acceptance by third parties.

Authorised witness. Regulation 3 defines a closed list of persons who may witness an advance personal plan under section 10(5)(b) of the Act. The categories include an accountant, the CEO of a local government council, a health practitioner (as defined under the Health Practitioner Regulation National Law), a social worker, and the principal of a Northern Territory school. The term “accountant” is further particularised: it covers members of Chartered Accountants ANZ, CPA Australia, or the Institute of Public Accountants who hold current certificates of public practice, as well as registered tax agents and auditors under the Corporations Act 2001. “Social worker” is defined as a person eligible for full membership of the Australian Association of Social Workers,not merely a person who works as a social worker. “Principal” means the principal of a Northern Territory school as defined in the Education Act 2015, not a principal of a school outside the Territory. This list is restrictive; a lawyer, nurse, police officer, or family member is not an authorised witness unless they also fall within one of the listed categories.

Recognised interstate documents. Regulation 8 and the Schedule give effect to the Act’s scheme for interstate portability. A “corresponding law” is a law of another Australian jurisdiction listed in the Schedule. A “recognised interstate document” is the specific instrument listed in the Schedule in respect of that corresponding law. For example, from Queensland the Powers of Attorney Act 1998 is a corresponding law and both an advance health directive and an enduring power of attorney are recognised interstate documents. From South Australia the Schedule covers four instrument types under three different Acts. No Northern Territory instrument appears because Territory plans are governed directly by the Act, not the recognition provisions. The list is exhaustive; documents not listed (e.g., an informal advance care directive from a state without a formal legislative scheme) are not recognised.

Record keeping. Regulation 5 imposes an affirmative duty on a decision maker who has authority to exercise financial management powers. At all times while the authority subsists, the decision maker must keep complete and up to date records of the adult’s assets and liabilities. The records must include sufficient information to identify each asset and liability, details of all dealings and transactions, information about condition and management, and “any other information reasonably necessary” to demonstrate compliance with the Act. This is an open ended standard that goes beyond simple receipts and bank statements,it may require narrative explanations if circumstances are unusual.

Certified copies. Regulation 10 provides for two levels of certification: a document purporting to be a copy of an original advance personal plan is taken to be a true copy if it is certified by the adult, a commissioner for oaths, a justice of the peace, or a public notary. The last page must be certified to the effect that the document is a true and complete copy of the original, and each other page must be separately certified to the effect that it is a true and complete copy of the corresponding page. A document purporting to be a copy of a certified copy also benefits from the same presumption if similarly certified. This creates an evidentiary shortcut: a certified copy can be produced to a bank, hospital, or land registry without the need to produce the original.

The Regulations directly impose obligations on three distinct groups: adults in the Northern Territory who make an advance personal plan, decision makers appointed under such plans, and persons who act as witnesses. Indirectly, they affect all professionals who advise on or facilitate advance planning, including lawyers, financial planners, health practitioners, social workers, and accountants. The Regulations also affect interstate residents who have made a recognised instrument and who later move to or deal with assets in the Northern Territory, because regulation 9 subjects their appointed decision makers to the same decision making prohibitions that apply under Territory law.

Adults making a plan. Any competent adult in the Northern Territory who wishes to formalise an advance personal plan under the Act must ensure the plan contains the core identifying information prescribed by regulation 2. Failure to do so may mean the plan does not meet the requirements of section 9(2)(b) of the Act and could be rejected by a third party relying on it, such as a financial institution or health care facility. The adult also needs to find a witness who fits the authorised witness categories. This narrows the pool of available witnesses, particularly in remote communities where a chartered accountant or an NT school principal may not be accessible. The cost and inconvenience of locating an authorised witness is a real compliance hurdle.

Decision makers. A person appointed as a decision maker under a plan that confers financial management powers is subject to regulation 5’s record keeping obligation. This duty is continuous and burdensome. The decision maker must maintain a complete and up to date inventory of all the adult’s assets and liabilities and record every dealing. The obligation does not end until the authority is terminated. For a family member acting gratuitously, this can be a significant administrative load, and failure to keep adequate records could expose them to complaints to the Public Guardian or tribunal, or to personal liability if they cannot account for their management of the adult’s property.

Witnesses. A person who falls within regulation 3’s list of authorised witnesses but who does not ordinarily act in that capacity may be asked to witness a plan. The Regulations do not impose special duties on witnesses beyond those in the Act, but a witness should be satisfied that the adult appears to understand the document and is signing voluntarily. An accountant or health practitioner who witnesses a plan may create an implied professional responsibility even though the Regulations do not require independent legal advice.

Interstate document holders. Adults who have made an instrument recognised under the Schedule (e.g., a Queensland enduring power of attorney) and their appointed attorneys are affected because regulation 9 restricts the attorney from making decisions that are prohibited by section 24 of the Act or section 30 of the Health Care Decision Making Act 2023. An attorney appointed under interstate law must become familiar with those NT prohibitions or risk acting without authority. Similarly, institutions dealing with an interstate attorney should verify that the proposed decision is not prohibited.

Land registry personnel. The Registrar General may register a certified copy of the part of a plan that authorises a land dealing. The registration of such an authority gives it public notice and may enable a delegate to deal with real property without further proof of authority. The Regulations do not require the entire plan to be lodged, only the relevant authorising part.

Duty to include mandatory content (regulation 2). The adult making the plan has a duty to ensure that the plan contains the specified personal information and, if decision makers are appointed, their full names and contact details. This duty is a precondition for the plan to satisfy the requirements of section 9(2)(b) of the Act. There is no right to omit these details; a plan that lacks them may be invalid.

Right to use an authorised witness (regulation 3). The adult has a right to choose any witness from the closed list. The witness has no duty to agree to witness a plan, but if they do, they must comply with any witnessing requirements in the Act (e.g., confirmation of identity and capacity). The Regulations do not grant an adult a right to insist on a particular witness, nor do they create a right to have a plan witnessed by someone outside the list.

Duty of decision maker to keep records (regulation 5). A decision maker exercising financial management powers is under a positive, ongoing duty to keep complete and up to date records of the adult’s assets and liabilities. The records must be sufficient to identify each asset and liability, and to show dealings, condition, and management. This duty cannot be delegated; it attaches personally to the decision maker. The decision maker also has a right to access the adult’s information to fulfil this duty, though that right is sourced in the Act rather than the Regulations.

Right to register a land dealing authority (regulation 6). The Registrar General may register a certified copy of that part of an advance personal plan that authorises a decision maker to enter into a land dealing. This appears to be a permissive power (the Registrar “may” register) rather than a mandatory procedure. The right to register gives the authority public notice and may facilitate transactions with land.

Right to produce certified copies (regulation 10). The adult or any subsequent holder of an advance personal plan has the right to produce a certified copy that is “taken to be a true copy” if the certification complies with the regulation. This creates an evidentiary presumption that reduces the need to produce the original. The right is not absolute; it depends on the copy being certified by an eligible person and each page being separately certified.

Limitation on interstate appointees (regulation 9). A person appointed under a recognised interstate document has no right to make a decision that is prohibited by section 24 of the Act or section 30 of the Health Care Decision Making Act 2023. This is a crucial restriction: even if the interstate document purports to grant broader powers, the NT Regulations cut them back.

The Regulations themselves do not create penal provisions. They are made under the Advance Personal Planning Act 2013, which is the primary source of offences and enforcement powers. However, non compliance with a regulation can have indirect penal or civil consequences. For example, if a plan does not contain the information required by regulation 2, it may not be a valid plan under the Act, meaning that a decision maker purporting to act under it could be acting without authority. That could expose the decision maker to liability for conversion, trespass to property, or breach of fiduciary duty, depending on the circumstances. The Act itself likely contains offences for fraud, forgery, or undue influence in relation to advance personal plans, and those offences apply regardless of the Regulations.

The record keeping duty under regulation 5 is enforceable primarily through the supervisory mechanisms in the Act. If a decision maker fails to keep records, the adult (while still capable), or a guardian, or the Public Guardian could apply to the Northern Territory Civil and Administrative Tribunal for orders. The Tribunal could require the decision maker to produce records, remove the decision maker, or make compensatory orders. Failure to keep adequate records may also ground a civil claim by the adult or their estate for failure to manage property with due care.

The certified copy provisions in regulation 10 create a rebuttable evidentiary presumption. If a document is certified in accordance with the regulation, it is taken to be a true copy. However, this presumption can be rebutted by contrary evidence. A person who fraudulently certifies a copy that is not true commits an offence under the general law (e.g., forgery, giving false evidence) but not under these Regulations. The same is true for a witness who falsely certifies a plan.

The restriction on interstate appointees under regulation 9 does not carry its own penalty, but if an interstate appointee makes a prohibited decision, they act without authority. Any transaction entered into as a result may be void or voidable, and the appointee could be liable for loss caused.

The Regulations are subordinate to the Advance Personal Planning Act 2013 (NT). Every provision here is made under a specific empowering provision of that Act (sections 9(2)(b), 10(5)(b), 30(1)(b), 55C, and 88). If the Act is amended, the Regulations must be read consistently, and any inconsistency with the Act would render the relevant regulation invalid to the extent of the inconsistency.

The Regulations interact directly with the Health Care Decision Making Act 2023 (NT) , which commenced on 1 July 2024. Regulation 9 was amended by that Act to cross reference section 30 of the Health Care Decision Making Act 2023. This means that a person appointed under a recognised interstate document cannot make a decision of a kind prohibited by that section, whatever that prohibition is (the Regulations do not reproduce it). Furthermore, former regulation 4 was repealed by the Health Care Decision Making Act 2023, indicating that the matters formerly covered by that regulation are now dealt with under the new Act.

The Regulations also interact with the Health Practitioner Regulation National Law (as applied in the NT) to define “health practitioner” for the purposes of authorised witnesses. This definition incorporates the national registration categories (medical practitioners, nurses, dentists, etc.). The Regulations do not limit which health practitioners may witness,any person registered under the National Law as a health practitioner is included,but the practical effect is that the witness must be currently registered and practising within their scope.

The Corporations Act 2001 (Cth) is referenced in the definition of “accountant”, which includes a person registered as an auditor under that Act. This means an auditor who is not a member of one of the professional accounting bodies may still act as an authorised witness if they hold a current auditor registration under the Corporations Act. This extends the pool slightly beyond the traditional accounting bodies.

The Schedule interacts with the interstate laws listed there. Each entry is paired with a specific document type. For example, the Powers of Attorney Act 2006 (ACT) is listed, and the recognised document is an “Enduring power of attorney” under that Act. If that Act is amended or repealed, the recognition would cease to have effect unless the Regulations are updated. The Schedule has already been amended twice (2016 and 2020) to keep pace with changes in other jurisdictions. A practitioner must check the current version of the Regulations to see if recent interstate reforms are reflected.

The land registration system (under the Land Title Act or similar) is engaged by regulation 6, which allows the Registrar General to register a certified copy of the relevant part of an advance personal plan that authorises a land dealing. This registration gives the dealing authority the same effect as a registered power of attorney in relation to real estate. The register is the Advance Personal Planning (Part 4A) Register, distinct from the general land register.

Finally, the Regulations interface with the general law of agency, tort, and equity. The record keeping duty in regulation 5 reinforces the fiduciary obligation of a decision maker to account. Failure to keep records could be evidence of breach of fiduciary duty.

The Advance Personal Planning Regulations 2014 were notified on 17 March 2014 and commenced on the same date. Since then they have been amended four times by the following instruments:

Statute Law Revision Act 2014 (Act No. 38, 2014) , assented 13 November 2014 and commenced same day. This made formal amendments to regulation 3 (authorised witnesses), likely to correct references or definitions. The endnotes indicate that regulation 3 was amended by this Act.

Education Act 2015 (Act No. 28, 2015) , assented 10 December 2015, with the relevant provision (section 195) commencing on 1 April 2016. This amended the definition of “principal” in regulation 3 to refer to the Education Act 2015 (replacing an earlier reference to the now repealed Education Act). The definition now says principal, see section 5 of the Education Act 2015.

Advance Personal Planning Amendment Regulations 2016 (SL No. 8, 2016) , notified and commenced 27 April 2016. This amended the Schedule (recognition of interstate documents). The exact changes are not detailed in the source text, but the endnotes list “sch amd No. 8, 2016, r 3”. This likely added new jurisdictions or document types to the table.

Advance Personal Planning Amendment Regulations 2020 (SL No. 26, 2020) , notified and commenced 5 August 2020. This further amended the Schedule (sch amd No. 26, 2020, r 4). By this time, some states (e.g., Victoria) had enacted new powers of attorney legislation, and the Schedule was updated to reflect the Powers of Attorney Act 2014 (Vic) and the Medical Treatment Planning and Decisions Act 2016 (Vic), replacing older references.

Health Care Decision Making Act 2023 (Act No. 19, 2023) , assented 17 August 2023, commenced 1 July 2024. This Act made two changes to the Regulations: it repealed regulation 4 entirely (see s 77) and amended regulation 9 (see s 78) to insert the cross reference to section 30 of the new Health Care Decision Making Act 2023. The repeal of regulation 4 suggests that its content (which is not reproduced in the source text, but presumably dealt with some aspect of decision making under the Act) is now covered by the new Act.

In addition, general amendments of a formal nature were made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to regulations 1, 3, and 10. These would have been minor updates to language or formatting to accord with modern drafting practice.

The Regulations have thus been updated to track changes in Territory and interstate law, but the core framework has remained stable since 2014.

The source text does not mention any court or tribunal decisions interpreting these Regulations. There is no reference to litigation in the endnotes or the regulations themselves. This is typical for subordinate legislation that is purely procedural and rarely tested in contested proceedings. Nonetheless, it is useful to note the potential areas where disputes could arise. For example, a disputed plan might challenge whether the adult’s residential address was correctly stated in the plan, or whether a copy was properly certified. There could be a dispute over whether a person is an “authorised witness” under the definition,for instance, whether a person who claims to be an “accountant” but does not hold the relevant certificate of public practice is valid to witness a plan. The Northern Territory Civil and Administrative Tribunal or the Supreme Court might be asked to determine such issues.

Another area of potential litigation involves the recognition of interstate documents. If a decision maker appointed under a recognised interstate document purports to make a decision in the Northern Territory, and a third party (e.g., a bank or hospital) refuses to accept it on the ground that the document is not listed in the Schedule, that decision could be challenged. Similarly, if an interstate appointee makes a decision that is prohibited by section 24 of the Act or section 30 of the Health Care Decision Making Act 2023, the validity of any transaction could be contested.

Litigation is most likely to arise in the context of a dispute about a decision maker’s management of an adult’s finances. If the adult later becomes capable and challenges the records, the record keeping obligations under regulation 5 would be central. A decision maker who failed to keep adequate records could face removal or surcharge. The absence of reported case law suggests that such disputes have either been resolved at the tribunal level without appeal, or that the Regulations have not yet been the subject of significant litigation. Practitioners should be aware that the Regulations provide a source of detailed technical requirements that can be weaponised in a dispute, even if there is no existing judicial interpretation of them.

Narrow definition of “social worker”. A person who works as a social worker but is not eligible for full membership of the Australian Association of Social Workers is not an authorised witness. This excludes many social welfare workers who have relevant qualifications but have not sought membership, or who are provisionally registered. An adult who relies on such a person to witness their plan may find the plan invalid.

Principal of an NT school only. The term “principal” in regulation 3 expressly refers to the definition in the Education Act 2015, which covers only principals of schools in the Northern Territory. A principal of a school in another state or territory is not an authorised witness, even if they are visiting the NT.

Accountant must hold a current practising certificate. The definition of “accountant” requires not just membership of the relevant body but also a current Certificate of Public Practice (or equivalent). A member of CPA Australia who works in industry and does not hold a Public Practice Certificate is not an authorised witness. This trap is easy to overlook because the term “accountant” in everyday language is broader.

Certified copies require each page to be separately certified. Regulation 10(3) requires each page (other than the last) to be certified to the effect that it is a true and complete copy of the corresponding page of the original. A simple staple bound copy with a single certification on the last page does not comply. The certifier must individually sign or initial every page. This is onerous for plans that are many pages long, and a failure to do so means the document is not a certified copy for the purposes of the regulation.

No email address or phone number required? Read carefully. Regulation 2(3) says the plan must contain each decision maker’s phone number (if any) and email address (if any). The phrase “if any” indicates that where the decision maker does not have a phone or email, those fields can be omitted. However, the better practice is to include at least one contact method. A plan that completely omits contact details for a decision maker may still be valid if it is impossible to provide them, but this could cause practical problems later.

Register only part of the plan. Regulation 6 permits registration of only “the part of an advance personal plan that authorises a decision maker to enter into a dealing in relation to land”. The rest of the plan,health directions, lifestyle preferences, instructions to the decision maker,is not registered. If a third party checks the land register, they may see the authority but miss any limitations on its exercise set out in the unregistered part of the plan. Decision makers and those dealing with them should retain the full plan.

Interstate appointees cannot make prohibited decisions without checking NT law. Regulation 9 provides that a person appointed under a recognised interstate document cannot make a decision that is prohibited by section 24 of the Act or section 30 of the Health Care Decision Making Act 2023. The Regulations do not reproduce these prohibitions. A decision maker appointed in Queensland under an enduring power of attorney must be aware that certain decisions (e.g., regarding special health procedures, sterilisation, or certain financial transactions) may be absolutely prohibited in the Northern Territory even if the Queensland document purports to allow them. Getting this wrong could lead to legal liability.

Schedule may be incomplete. The Schedule lists specific documents from each jurisdiction. It is not a general recognition of all advance planning documents. For example, from New South Wales it recognises only the “Appointment of enduring guardian” under the Guardianship Act 1987 and the “Enduring power of attorney” under the Powers of Attorney Act 2003. It does not list an “Advance care directive” from NSW (which in NSW is a separate document under its own legislation). A person from NSW with only an advance care directive (not a power of attorney) will find it is not a recognised interstate document in the NT.

For an adult making an advance personal plan in the Northern Territory, compliance with the Regulations is part of the broader compliance with the Act. The steps are:

1. Prepare the plan. Ensure the document contains the adult’s full name, date of birth, and residential address. If the plan appoints decision makers, include each decision maker’s full name, residential address, phone number (if any), and email address (if any). These must be recorded accurately.

2. Select an authorised witness. Choose a person from the list in regulation 3. Verify their eligibility: for an accountant, confirm they hold a current Certificate of Public Practice or auditor registration; for a social worker, confirm they are eligible for full membership of the AASW; for a principal, confirm they are the principal of an NT school. If in doubt, obtain evidence of the person’s status (e.g., a practising certificate or membership card).

3. Execute the plan. The adult must sign the plan in the presence of the authorised witness, who must also sign to attest execution. The Regulations do not specify additional witnessing formalities (the Act does), but best practice is to follow the Act’s requirements, including that the witness is not a decision maker or a relative.

4. Decision maker record keeping. If the decision maker is given financial management powers, they must immediately start keeping the records required by regulation 5. These should include a comprehensive list of the adult’s assets and liabilities at the time authority commences, and thereafter record every transaction, change in condition, and management decision. The records should be stored securely but be accessible to the adult (if capable) or to any guardian.

5. Land dealings. If the plan authorises a decision maker to deal with land, the decision maker or the adult may apply to the Registrar General to register a certified copy of the relevant part of the plan. This is done by producing a certified copy (see step 6) and a notice in a form approved by the Registrar General (or in writing, if no form has been approved). Registration is not compulsory, but it provides public notice and may be required by the land registry or a third party.

6. Certified copies. To produce a presumptively valid copy of the plan, take each page of the original and have the adult (if still capable), a commissioner for oaths, a justice of the peace, or a public notary certify each page as a true and complete copy of the corresponding page of the original. The last page must be certified as a true and complete copy of the entire original. A copy of a certified copy may also be certified in the same way.

7. Interstate document holders. If a person is appointed under a recognised interstate document and wishes to exercise decision-making power in the Northern Territory, they should first check regulation 9 and the primary Act to confirm that the proposed decision is not prohibited. They should also be prepared to produce a copy of the interstate document (and, if needed, a certified copy under that jurisdiction’s laws). The Schedule tells them whether their document type is recognised.

8. Review the Schedule before relying on an interstate document. A person who holds an enduring power of attorney from Tasmania should check the Schedule to confirm that the “Enduring power of attorney” under the Powers of Attorney Act 2000 (Tas) is listed. If it is, they may proceed with caution; if not, they should seek legal advice.