In many families, parents spend half the year in Melbourne helping with the grandchildren and the other half in Shanghai, Kuala Lumpur, Singapore or Hong Kong. All is well until a father has a stroke in Melbourne or a mother is diagnosed with dementia back home, and the children discover that nobody has legal authority to sign for them, manage their bank accounts or make medical decisions.
This article explains, under Victorian law, which documents to put in place, how to coordinate documents across two countries, and the risks that most often arise inside families.
1. The core Victorian documents
Under the Powers of Attorney Act 2014 (Vic), an enduring power of attorney can cover financial matters, personal matters or both. You can appoint one or more attorneys, and different people for different matters. Unlike an ordinary power of attorney, it continues after you lose decision-making capacity.
It must be signed in front of two independent adult witnesses, one of whom must be an authorised witness such as a justice of the peace or a registered medical practitioner. The witnesses certify that the principal appeared to sign freely and voluntarily and to have decision-making capacity, and each attorney must sign an acceptance. If parents do not read English, use a qualified interpreter so they genuinely understand the document.
Medical treatment decisions are not covered by an enduring power of attorney. Under the Medical Treatment Planning and Decisions Act 2016 (Vic), you appoint a medical treatment decision maker separately, and can also make an advance care directive. The appointment needs two witnesses, one of whom must be a registered medical practitioner or a person authorised to witness affidavits, and the person being appointed cannot be a witness.
If nobody has been appointed, the law sets an order: a VCAT-appointed guardian, a spouse or domestic partner, the primary carer, an adult child, a parent, then an adult sibling, taking the first person who is reasonably available and willing and able to decide. For example, if a father is in hospital in Melbourne and his wife overseas cannot be reached, his eldest son in Australia may become the decision maker, which may not be what the father would have chosen.
2. Will a Victorian power of attorney work overseas?
Generally not automatically. A Victorian document is made under Victorian law, and whether an overseas bank, land registry or hospital will accept it depends on local law and practice. The safer course is a separate local document where the parents live or hold assets:
- Singapore:a Lasting Power of Attorney under the Mental Capacity Act 2008, certified by a registered certificate issuer (an accredited medical practitioner, practising lawyer or psychiatrist) and registered with the Office of the Public Guardian. It can cover personal welfare and property and affairs.
- Hong Kong:an Enduring Power of Attorney under the Enduring Powers of Attorney Ordinance (Cap 501), signed before a registered medical practitioner and a solicitor. It covers property and financial affairs only, not health or personal care, and once the donor becomes mentally incapable it must be registered with the Registrar of the High Court before the attorney can continue to act.
- Malaysia:powers of attorney are generally made under the Powers of Attorney Act 1949. As we understand it, Malaysia is still considering legislation for a power that survives loss of capacity, so the effect of a current power after incapacity must be confirmed by a Malaysian lawyer.
- Mainland China:Article 33 of the Civil Code allows an adult with full capacity to agree in writing in advance with close relatives or other willing people or organisations on who will be their guardian if they lose capacity in whole or in part (voluntary guardianship). The law requires only writing, but in practice these agreements are usually notarised, and banks and property dealings often need a separate notarised power of attorney.
Where a document is signed in one country and used in another, it also needs authentication. A Notary Public at our firm can notarise documents signed in Australia for use overseas. Since 7 November 2023 the Apostille Convention has applied to mainland China, so Australian documents with an apostille generally no longer need consular legalisation.
3. No power of attorney? VCAT guardianship and administration
If a parent has lost capacity without an enduring power of attorney, the family can apply to VCAT under the Guardianship and Administration Act 2019 (Vic) for a guardian (personal and lifestyle decisions) and/or an administrator (financial and property decisions). VCAT will first look for a suitable family member or friend; if there is none, it may appoint the Public Advocate or State Trustees.
The process needs medical evidence and time, siblings may disagree about who should be appointed, and appointees usually carry ongoing reporting obligations. Making enduring documents while parents still have capacity usually avoids all of this.
4. The risk of financial abuse within families
Financial elder abuse most often happens within families, and often not out of malice but from 'just borrowing it for now' or 'it will be mine one day anyway'. Common examples include an attorney moving a parent's money into their own account, borrowing or giving guarantees in the parent's name, and changing property arrangements without the other siblings knowing.
Victorian law requires attorneys to act in the principal's interests, keep the principal's property separate from their own and keep accurate records. An attorney who abuses the power can be removed by VCAT and may face civil and even criminal consequences. Practical safeguards include appointing two attorneys to act jointly, requiring regular reports to another family member, and stating clearly whether gifts to family are allowed.
5. Granny flat arrangements: whose money is at risk?
A common arrangement is for parents to sell their home and fund a self-contained unit on a child's property, or give the child money towards a house, in exchange for a right to live there for life. Centrelink calls this a 'granny flat interest': paying for a lifetime right to live in a home you do not own. Services Australia accepts several kinds of arrangement, but transferring extra money on top may bring in the gifting rules, and if a parent leaves within five years for a reason that was foreseeable when the interest was created, deprivation may be assessed.
The bigger legal risk is that the parents' money becomes property in the child's name. If the child divorces, becomes bankrupt, dies or falls out with the parents, getting the money back can be very difficult. A written family agreement should record the amount contributed, the right of residence, an exit mechanism (for example, how sale proceeds are shared) and what happens if a parent moves into aged care. A written arrangement can also affect capital gains tax, as the ATO provides an exemption for qualifying written granny flat arrangements, so speak with your tax adviser as well.
6. Parent visas and family disagreements
Parent visas come in contributory and non-contributory streams with limited places and waits measured in years; Home Affairs currently estimates around 18 years for a new contributory parent application, and longer for non-contributory. Many parents therefore travel back and forth on temporary visas for years, which has its own implications for their status, health care and aged-care planning in Australia.
Who cares for the parents, where they live, how their money is used and who gets the house later: these questions flare up easily when siblings live in different countries. Elder mediation brings parents and children together with a neutral mediator, by video across time zones if needed, with the parents' own wishes at the centre. Our principal, Justin Chua, is a Nationally Accredited Mediator who practises elder mediation and can run these family meetings in Mandarin or English.
Practical checklist
- While parents still have capacity, make Victorian enduring powers of attorney for financial and personal matters.
- Separately appoint a medical treatment decision maker and consider an advance care directive.
- Make local documents where parents live or hold assets (Singapore LPA, Hong Kong EPA, mainland voluntary guardianship and so on).
- Arrange notarisation, apostilles and translations for documents used across borders.
- Keep a list of the parents' bank accounts, property, insurance and medical information in each country.
- Put any arrangement involving parents' money and housing in a written family agreement.
- Consider mediation early if the family disagrees.
Frequently asked questions
Can parents who speak only Chinese sign a Victorian power of attorney?
Yes. What matters is that they understand the document and have the necessary decision-making capacity. Use a qualified interpreter; the witnesses must also be satisfied that they appear to sign freely and with capacity.
Dad has been diagnosed with dementia. Can he still sign?
A diagnosis does not by itself mean a lack of capacity; the question is whether he understands the decision when he signs. If in doubt, ask a doctor to assess and document his capacity. If he no longer has capacity, the usual route is a VCAT application.
Can a Hong Kong enduring power of attorney deal with a Melbourne property?
Generally not directly. Victorian property usually needs a Victorian enduring power of attorney. Make documents in both places and make sure they are consistent.
When does an enduring power of attorney start?
The document can specify when or in what circumstances it starts, for example immediately or only when the principal loses capacity. Each option has pros and cons, which depend on how often things need to be handled in Australia while parents are overseas.
Our siblings disagree about our parents' care and money. Do we have to go to VCAT?
Not necessarily. Many disagreements can be resolved through a family meeting or elder mediation, which costs less and protects relationships. If an attorney may be misusing their power, VCAT can review the appointment and remove the attorney if needed.
Chua Tan Associates has practised in Melbourne since 1990, helping cross-border families in Mandarin, Cantonese and English with estates and succession, family law, property, commercial, immigration and notarial matters. If you are planning for parents who live between two countries, call us on 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video, so family members overseas can join.
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This article is general information only and is not legal advice.
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