Making and ending an enduring power of attorney

Part of the Powers of Attorney topic

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In short

Preparing to make an enduring power of attorney

You should:

• seek legal advice – an enduring power of attorney is a legal document that can significantly affect your legal rights
• think about your views, wishes and preferences for the future
• think carefully about who you would like to appoint as your attorney(s)
• talk to your attorney(s), family and friends

Choosing your attorney(s)

• Choose carefully
• Eligibility
• Appoint multiple attorneys
• If you don't have anyone to choose

Choose carefully

Unfortunately, some attorneys may mismanage their role. This could include using your money to pay their own expenses or selling your assets and keeping your money for themselves. You should only appoint people you trust to look after your affairs.

Eligibility

To be eligible to be an attorney, a person must:

• have capacity to make decisions they are appointed for
• be 18 or older
• not be
  • your paid carer or not have been your paid carer in the past 3 years. (A paid carer is someone paid a fee or wage to care for a person, but not someone receiving a carer’s pension or benefit)
  • your health provider
  • a service provider for a residential service where you live
  • bankrupt or taking advantage of the laws of bankruptcy, if appointed for financial matters.

Refer to pages 7–8 of the Enduring power of attorney explanatory guide for more information to help you choose your attorney(s).

Appoint mulitple attorneys

You can appoint multiple attorneys—but you can only appoint a maximum of 4 people who must agree on all decisions (joint attorneys).

If you do appoint multiple attorneys, you will need to decide how they exercise their power (e.g. jointly, severally, by a majority, successively or alternatively).

Refer to pages 10–11 of the Enduring power of attorney explanatory guide for more information about appointing multiple attorneys.

If you don’t have anyone to choose

If you don’t feel confident that you have anyone suitable in your life to take on the responsibilities of an attorney for personal (including health) matters, you can appoint the Public Guardian.

You can also appoint the Public Trustee as your attorney for financial matters. You should contact the Public Trustee before appointing them to act as your attorney. Learn more about the Public Trustee.

You can also appoint a trustee company as your attorney for financial matters.

Choosing the right form

There are 2 forms you can use to make an enduring power of attorney.

Use the Short Form if you want to appoint either:

• attorney(s) for personal (including health) matters only
• attorney(s) for financial matters only
• the same attorney(s) for both personal (including health) matters and financial matters.

Use the Long Form if you want to appoint different attorneys for personal (including health) matters and for financial matters.

You can download and print a free copy of the form you need.

• Enduring power of attorney—short form (form2).
• Enduring power of attorney—long form (form 3).

You can print a copy of the forms at your local library or access a print on demand service.

Getting the form witnessed

You must sign the form in the presence of an eligible witness. This could be a:

• justice of the peace (JP)
• commissioner for declarations (Cdec)
• lawyer
• notary public.

The witness must:

• be present when you sign the form
• certify that you appeared to understand the document and what it means for you
• ensure you are signing the document voluntarily and without pressure.

Attorney acceptance

Once you and the witness have signed the form, your attorney(s) must sign it to accept their appointment.

Your attorney(s) does not have to do this straight away, but they must sign before they can begin making decisions on your behalf.

You should direct your attorney(s) to:

• the Factsheet: Obligations of attorneys under an enduring document
• the Enduring power of attorney explanatory guide – Information for attorneys is at pages 21 to 24.

Registering your enduring power of attorney (if required)

Before your attorney(s) can deal with land in Queensland on your behalf, your enduring power of attorney must be registered with the Queensland Titles Registry.

Lodge a Request to register power of attorney/Revocation or Power of Attorney Form (Form 16).

Include a certified copy of the enduring power of attorney.

Be aware that once registered with the Titles Registry, an image of the enduring power of attorney will exist on a publicly searchable register.

You do not have to register an enduring power of attorney anywhere if your attorney(s) does not need to deal with land in Queensland on your behalf.

Making a certified copy (optional)

A certified copy of your enduring power of attorney can be made by making a copy of the original enduring power of attorney and having one of the following people certify that it is a true and complete copy of the original document:

• Justice of the Peace (JP)
• Commissioner for Declarations (CDec)
• lawyer
• notary public.

What to do with the completed form

It is important to keep your original enduring power of attorney in a safe place.

Give certified copies of your enduring power of attorney to your:

• attorney(s)
• doctor or other health provider(s)
• bank
• lawyer.

You should also let your close family and friends know that you have made an enduring power of attorney and where to find it.

You should review your enduring power of attorney if your personal circumstances change.

Ending your enduring power of attorney

You may revoke (end) your enduring power of attorney at any time while you have capacity to do so.

Use the Revocation of enduring power of attorney (form 6) to revoke your enduring power of attorney.

If you revoke your enduring power of attorney, you must take all reasonable steps to advise all your attorneys that it has been revoked.

If it had been registered with the Queensland Titles Registry, you should also register your revocation of the enduring power of attorney.

This can be done by lodging another Request to register power of attorney/Revocation or Power of Attorney Form (Form 16), along with a single-sided copy of the Revocation of enduring power of attorney (form 6).

There are other circumstances in which your enduring power of attorney may end including:

• you make a later enduring power of attorney that is inconsistent with your earlier enduring power of attorney
• you get married or enter into a civil partnership (unless your enduring power of attorney states otherwise, it will be automatically revoked to the extent that it gives power to someone that is not your current spouse or civil partner)
• you die.

See page 19 of the Enduring power of attorney explanatory guide.