Power of attorney
A power of attorney is a formal document giving another person the authority to make legally binding decisions on your behalf.
Types of power of attorney
There are 2 types of power of attorney: general power of attorney and enduring power of attorney.
General power of attorney
You would use a general power of attorney to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you’re going overseas and need someone to sell your house or pay your bills. It’s used while you can still make your own decisions and ends once you no longer can (i.e. you lose capacity).
Enduring power of attorney
You would use an enduring power of attorney to appoint someone to make financial and personal decisions on your behalf if you become unable to make your own decisions, e.g. if you have failing cognitive health or lose capacity to make decisions.
For financial decisions, you can nominate whether you want the attorney to begin making financial decisions for you straight away or only once you’ve lost capacity.
Formal and informal decision-making
If you can’t make your own decisions, someone can make them for you either formally or informally.
Your family and close friends can make decisions informally for you.
Decisions can be made formally by:
- an attorney appointed under an enduring power of attorney or advance health directive
- a statutory health attorney
- a guardian or administrator appointed by tribunal or court.
Note: A power of attorney is different from making a will, in which you can state how you want your assets distributed after your death and choose an executor to ensure your wishes are met. A power of attorney enables someone to make legally binding decisions for you while you’re alive and their power ends when you die.
Requirements to make enduring power of attorney
To make an enduring power of attorney, you must be an adult capable of making your own personal and financial decisions. This means you must be able to:
- understand the nature and effect of a decision
- freely and voluntarily make decisions
- communicate those decisions in some way.
You must also be able to understand the nature and effect of making an enduring power of attorney, including:
- what is in the legal document that makes the other person an enduring power of attorney on your behalf
- the consequences of preparing the document
- when the power begins.
When doubt arises over whether a person has the capacity to make an enduring power of attorney, the Queensland Civil and Administrative Tribunal (QCAT) can make a decision about that person’s decision-making capacity.
Choosing an attorney
When you make an enduring power of attorney, the attorney can make personal and/or financial decisions on your behalf, which will have the same legal effect as if you’d made them yourself (subject to any restrictions you impose in the document).
Find someone you trust who’d be willing to take on the responsibility. They must be at least 18 years old and not be your paid carer. (Note: A person receiving a carer’s pension is not regarded as a paid carer.)
For personal matters, consider family members or a close friend who understands your personal wishes and health care needs.
For a financial attorney, consider someone who is responsible with their own money and understands financial matters.
Be careful who you choose as your attorney. You’re potentially giving another person total control over your assets and the ability to make personal decisions about your health care and accommodation when you can’t do so yourself.
What an attorney must do
Your attorney must:
- act honestly and with care
- recognise your right to confidentiality
- consider your existing supportive relationships, values and culture
- apply the general principles under the Powers of Attorney Act 1998.
In relation to health care decisions, your attorney must:
- ensure any decision made contributes to your health and well-being
- choose the least intrusive method of treatment where possible
- consider your views and wishes
- consider the advice of your doctor or other health care providers
- comply with the health care principles under the Powers of Attorney Act 1998.
In relation to financial matters, your attorney must:
- keep records and accounts of dealings and transactions
- keep your property separate from their own (unless it is owned jointly)
- not give away your property, and make only reasonable gifts for birthday or Christmas presents or donations that you would normally make yourself.
Decisions an attorney can make
You can give your attorney the power to:
- decide on personal matters, such as where you live and who you have contact with
- agree to most health care issues, including medical and dental treatment, and withdrawing or withholding of life-sustaining measures
- control your finances, including collect your income, pay your bills and taxes, sell or rent your home, use your income to pay for your needs or invest your money.
The power of your attorney ends with your death. If you retain capacity, you may revoke a general power of attorney at any time. You may revoke an enduring power of attorney at any time until you lose capacity.
If your attorney behaves improperly
In some cases, attorneys have spent assets unwisely or sold the family home inappropriately. However, they are in the minority. In such cases, power of attorney can be revoked, and attorneys can be investigated by the Public Guardian and their decision-making powers suspended if necessary.
Making an enduring power of attorney
You can complete an enduring power of attorney form yourself. However, you might wish to first talk to your solicitor, the Public Trustee, a private trustee company, a financial planner or others who can give you professional advice tailored to your circumstances.
Find out how to make an enduring power of attorney.
The Office of The Public Guardian is responsible for protecting the rights of vulnerable Queenslanders including adults with impaired decision making capacity and children and young people in out of home care.
Read more about the Public Guardian.