Power of attorney
A power of attorney is a formal document giving another person the authority to make personal and/or financial decisions on your behalf.
Personal decisions relate to your care and welfare, including your health care, (e.g. deciding where or with whom you live or consenting to medical treatment).
Financial decisions relate to the management of your finances (e.g. paying your bills and taxes, selling or renting your home, using your income to pay for your needs or invest your money).
There are 2 types of power of attorney:
1. general power of attorney
2. 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).
You have lost capacity to make a decision if you cannot:
- understand the nature and effect of the decision
- freely and voluntarily make the decision
- communicate the decision in some way
Print and complete the:
Enduring power of attorney
You would use an enduring power of attorney to appoint someone to make financial and/or personal decisions on your behalf.
For financial decisions, you can nominate whether you want the attorney to begin making financial decisions for you straight away or at some other date or occasion, such as
Your attorney’s power to make personal decisions only commences when you lose capacity to make these decisions.
How to make an enduring power of attorney
To make an enduring power of attorney, you must understand the nature and effect of making an enduring power of attorney, including:
- the consequences of preparing the enduring power of attorney
- that you may specify or limit the power to be given to your attorney, and instruct your attorney about the exercise of the power in the enduring power of attorney
- when the power begins
- that once the power begins your attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney
- that you may revoke the enduring power of attorney at any time while you have capacity to do so
- that the power continues even if you lose capacity
- if you lose capacity you are effectively unable to oversee the use of the power.
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.
Complete an enduring power of attorney form
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 or a financial planner who can give you professional advice tailored to your circumstances.
Print and complete an enduring power of attorney:
- short form if you wish to appoint the same attorney/s for both financial matters and personal matters (including health care)
- long form if you wish to appoint different attorneys for personal matters (including health care) and financial matters.
What to do with your completed form
You should leave your original document in a safe place, such as with your bank, but it’s important to keep a copy to refer to.
You should also give a copy to anyone else who may need to be involved, such as:
- your attorney
- your doctor
- your solicitor
- your accountant
- your stockbroker
- your bank.
You do not need to register your completed document unless it is likely to be used in transactions related to buying or selling land. To register your document, take the original document to the Titles Registry and pay the fee.
If the power is revoked, you must deregister the document by lodging a revocation form with the Titles Registry.
Choosing your 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
- not be your paid carer (a person receiving a carer's pension is not considered a paid carer)
- not be your health provider
- not be service provider for a residential service where you are resident.
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. The person you appoint must not be bankrupt.
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.
If you don’t have anyone to choose as your attorney
When you don’t have anyone suitable to appoint as your attorney for personal decisions, you can apply to appoint the Public Guardian, who is an independent statutory officer who protects the rights of adults with impaired capacity.
Read more about appointing the Public Guardian for personal matters and download the application form.
When you don’t have anyone suitable to appoint as your attorney for financial decisions, you can appoint the Public Trustee, who provides
- enduring powers of attorney
- free wills
- investment, executor and financial administration services.
Read about financial decisions by the Public Trustee.
What your 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 wellbeing
- 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:
- avoid entering transactions that may result, in their interests (or those of attorney’s relations, business associates or close friends) conflicting with your interests
- keep records and accounts of dealings and transactions
- keep your property separate from their own (unless it is jointly owned)
- not give your property away, and make only reasonable gifts for birthday/Christmas presents or donations that you would normally make yourself.
Revoking your enduring power of attorney
You may revoke an enduring power of attorney at any time while you have capacity to make this decision.
Print and complete the revocation form.
Other ways your enduring power of attorney will end
Several other circumstances will bring an enduring power of attorney to an end.
Your enduring power of attorney will end if you:
- die — If you die, your enduring power of attorney is revoked in its entirety.
- get married — Unless your enduring power of attorney states otherwise, it is revoked if you get married. However, if your husband or wife is already your attorney, your power of attorney is only revoked to the extent that it gives power to someone other than your husband or wife.
- get divorced — If you divorce, the power of attorney is revoked to the extent that it gives power to your former spouse.
- enter into a civil partnership — Unless your enduring power of attorney states otherwise, it is revoked if you enter into a civil partnership. However, if your civil partner is already your attorney, your power of attorney is only revoked to the extent that it gives power to someone other than your civil partner.
- terminate your civil partnership — If you terminate your civil partnership, your enduring power of attorney is revoked to the extent that it gives power to your former civil partner.
- make an inconsistent document — Your enduring power of attorney is revoked to the extent of any inconsistency with any later documents you complete, such as an advance health directive or another enduring power of attorney.
It will also end if your attorney:
- withdraws — Your attorney may withdraw by giving you a signed notice or by getting the court’s leave to withdraw.
- becomes your paid carer or health-care provider — If your attorney becomes your paid carer or health-care provider, your enduring power of attorney is revoked to the extent that it gives that attorney power for a personal matter.
- becomes incapable — Your attorney’s power is revoked if he or she is no longer capable to make a decision about a matter.
- becomes bankrupt or insolvent — If your attorney becomes bankrupt or insolvent, your enduring power of attorney is revoked to the extent that it gives that attorney power for a financial matters.
If your attorney behaves improperly
In rare cases, attorneys have spent assets unwisely or sold the family home inappropriately. In such cases, the Public Guardian has the power to investigate an attorney and has several options available to resolve the matter to best protect the adult concerned. Additionally, QCAT or the Supreme Court can remove an attorney or revoke an enduring power of attorney.