What is 'Power of Attorney'?

Suppose that your ability to make decisions has become limited, either because you are absent overseas or because of a lack of decision-making capacity.
In such circumstances, you can appoint a trusted person to act as your attorney to make decisions on your behalf.

A power of attorney is a document by which you (the principal) authorise another person (the attorney) to act on your behalf. The attorney must produce the power of attorney document when acting on your behalf.

Anyone over 18 years who can understand the nature of the power of attorney document can appoint an attorney.

You can use a power of attorney in many circumstances and achieve almost any purpose. You might authorise your attorney to buy or sell property on your behalf. Or your attorney could, for instance, be authorised to operate a bank account, or make health care decisions.

A power of attorney can be helpful in circumstances including the following:

  • you are planning an absence from Queensland or Australia;
  • you have limited physical mobility;
  • you are at an age where you feel that someone else is better able to manage your affairs; or
  • you are concerned that you might be incapable of making your own decisions in the future.

There are two types of power of attorney:

  • a general power of attorney; and
  • an enduring power of attorney (EPA).

A general power of attorney ceases to operate if you, as the person giving the power, ceases to have the capacity to make your own decisions. An enduring power of attorney gives your attorney power to act through any period of incapacity. For example, suppose you have appointed someone to act as your attorney and later lose capacity due to Alzheimer’s disease. In that case, your enduring attorney can continue making decisions on your behalf.

Enduring Power of Attorney

An enduring power of attorney enables you to nominate one or more trusted individuals to manage your affairs when you cannot do so yourself. "Enduring" means that the power granted to your attorney to act on your behalf continues beyond your loss of legal capacity.

In the absence of an enduring power of attorney, loss of legal capacity requires an application to the Queensland Civil and Administrative Tribunal (QCAT) for orders permitting your loved ones to make decisions on your behalf. This is an expensive, time-consuming, and stressful process.

An enduring power of attorney provides you with the opportunity to decide who your attorneys will be, what powers they will have, and when those powers will commence.

Persons eligible for appointment as your attorney must be at least 18 years, and not be your paid carer or health provider. If appointed for financial matters, your attorney must not be bankrupt. Your attorney must be someone you trust and who understands your wishes. The appointment of more than one attorney is recommended.

You can authorise your attorney to do anything concerning your financial, personal, or health matters.

A financial attorney will be responsible for your financial decisions, property, and legal affairs. Records of all transactions and dealings must be retained by your financial attorney. Conflicts between the interests of your attorney and your own must be avoided. Your financial attorney can do things such as:

  • pay your bills;
  • do your banking;
  • prepare your tax returns;
  • manage your investments; or
  • purchase property on your behalf.

You can elect when your attorney’s power for financial matters begins, whether immediately or upon losing capacity.

A personal attorney can make decisions regarding your care and welfare, such as:

  • where you live;
  • with whom you live;
  • whether you work, the kind of work you do and your place of work;
  • what educational training you undertake;
  • day-to-day issues such as diet and dress; or
  • a legal matter not relating to financial or property matters.

An attorney has no power to make decisions about special health matters such as:

  • special medical research or experimental health care; and
  • blood or organ donations while you are alive.
Some decisions can't be made by an enduring attorney.
An attorney for health matters can make medical decisions, including which treatment options and medications should be prescribed. This power only begins if or when you become incapable of making your own decisions.

Revoking an enduring power of attorney

You can change or revoke your enduring power of attorney at any time, provided you have the legal capacity to do so.

An enduring power of attorney is revoked by signing a revocation of the power of attorney. It will automatically be revoked by:

  • your death (as principal);
  • the resignation or death of the attorney;
  • your marriage to someone other than the attorney, unless a contrary intention is expressed in the power of attorney;
  • a later power of attorney, to the extent of any inconsistency;
  • the incapacity of the attorney;
  • the bankruptcy or insolvency of the attorney for financial matters; or
  • an attorney for personal matters becoming your paid carer, health provider, or a service provider for a residential service where you are a resident.
Suppose you revoke your enduring power of attorney.
In that case, you should first inform your attorney that their powers are no longer operative.

Enduring Power of Attorney FAQ: Frequently Asked Questions

A power of attorney is a document by which you (the principal) authorise another person (the attorney) to act on your behalf.

You can use a power of attorney in many circumstances, including business and family situations. You can use it to achieve almost any purpose. A power of attorney can be helpful in situations including the following:

  • you are planning an absence from Queensland or Australia;
  • you have limited physical mobility;
  • you are at an age where you feel that someone else is better able to manage your affairs; or
  • you are concerned that you might be incapable of making your own decisions in the future.

Anyone over 18 years who can understand the nature of the power of attorney document can appoint an attorney.

A power of attorney is a document by which you (the principal) authorise another person (the attorney) to act on your behalf. An enduring power of attorney allows the attorney to continue acting and making decisions, even when the principal can no longer manage their own affairs. The person you appoint as your attorney is authorised to do all things that you would typically be able to do yourself. For example, your attorney could pay your bills, open and close bank accounts, and buy or sell real estate.

A general power of attorney (for example, to sign documents in your absence) will cease to have effect if you lose capacity. An enduring power of attorney enables your attorney to act for you if you lose capacity (due to an illness or head injury, for instance).

Anyone over 18 who has the legal capacity to make decisions should have an enduring power of attorney.

In the absence of an enduring power of attorney, loss of legal capacity would require an application to Qld Civil and Administrative Tribunal for orders permitting your loved ones to make decisions on your behalf.

Persons eligible for appointment as your attorney must be at least 18 years, and not be your paid carer or health provider. If appointed for financial matters, your attorney must not be bankrupt.

You can give your attorney power to make decisions on your behalf about financial matters and personal matters, including health care.

An attorney has no power to make decisions defined as special personal matters and special health care matters.

Examples of a special personal matter are:

  • making or revoking a Will;
  • making or revoking a power of attorney, enduring power of attorney, or advance health directive;
  • consenting to the adoption of a child;
  • consenting to marriage; and
  • entering a surrogacy arrangement or consenting to the making or discharging of a parentage order.

Examples of a special health care matter are:

  • removal of tissue for donation from you while alive;
  • sterilisation;
  • termination of pregnancy;
  • participation in special medical research or experimental health care; and
  • electroconvulsive therapy or psychosurgery.

You can change or revoke your enduring power of attorney at any time, provided you have the legal capacity to do so.

Your enduring power of attorney will automatically be revoked by:

  • you signing a revocation of the power of attorney;
  • your death, as principal;
  • the resignation or death of the attorney;
  • your marriage to someone other than the attorney, unless a contrary intention is expressed in the power of attorney;
  • a later power of attorney, to the extent of any inconsistency
  • the incapacity of the attorney;
  • the bankruptcy or insolvency of the attorney for financial matters; or
  • an attorney for personal matters becoming your paid carer, health provider, or a service provider for a residential service where you are a resident.

In Queensland, you are only required to register your Power of Attorney with the Land Titles Office if your Attorney will be buying or selling land on your behalf.

An attorney must act with honesty and care and make decisions in your best interests. It is an offence not to do so. An enduring attorney must ensure that the advice of your doctor or health care provider is considered when making any decision regarding your health care.

Your attorney has a duty to keep records of financial dealings and transactions. Also, your attorney must keep your property separate from their own unless it is jointly owned.