Enduring Power of Attorney QLD

Three kinds of decision, and they do not start at the same time

This is the part that is most often misunderstood.

An enduring power of attorney made under the Powers of Attorney Act 1998 can cover financial matters, personal matters and health matters. The financial power is flexible about timing: you can say it begins immediately, on a stated date, or when you lose capacity, and many people choose immediate so an attorney can help while they are still perfectly capable.

The personal and health powers are different. They begin only when you lose capacity for the matter, and you cannot nominate an earlier start time for them. The word enduring is what matters: an ordinary power of attorney ends the moment you lose capacity, which is precisely when you need it, whereas an enduring one continues. Queensland's approved forms were updated on 30 November 2020, and a document on an older form may not do what you expect.

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Choosing an attorney, and what happens if you do not have one

If nobody is appointed, the law appoints someone for you.

Your attorney must be at least 18, must not be bankrupt if they are handling financial matters, and must not be a paid carer or health provider for you. You can appoint more than one and say whether they act jointly, meaning together on everything, or severally, meaning any of them can act alone.

They are bound by statutory general principles: to act honestly and with reasonable diligence, keep their money separate from yours, keep records, and give effect to your views and wishes as far as they can. If you have no enduring power of attorney and you lose capacity for a health decision, Queensland law provides a statutory health attorney, which is the first available and culturally appropriate person from a set list: your spouse, then an adult carer, then an adult friend or relative, and if none of those is available, the Public Guardian.

For financial matters there is no equivalent shortcut, and someone would have to apply to QCAT to be appointed administrator, which takes time and money at the worst possible moment.

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QUESTIONS

Frequently asked questions

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What is the difference between a general and an enduring power of attorney?

A general power of attorney ends if you lose capacity, so it suits a defined situation such as being overseas while a property settles. An enduring power of attorney continues after you lose capacity, which is the whole reason most people make one.

Can my attorney start making decisions straight away?

For financial matters, yes if you choose that. You can say the financial power begins immediately, on a particular date or occasion, or on loss of capacity. Personal and health powers are different: they can only begin when you no longer have capacity for the matter, and you cannot bring that forward.

What if I lose capacity without an enduring power of attorney?

For health decisions, Queensland law appoints a statutory health attorney from a set list, starting with your spouse, then an adult who cares for you, then an adult friend or relative, and failing all of those the Public Guardian. For financial matters someone would have to apply to QCAT to be appointed as your administrator, which is slower, more expensive and gives you no say in who it is.

Can I cancel or change it?

Yes, at any time while you have capacity. Revocation should be in writing and you need to tell the attorney and anyone relying on the document, such as your bank. It is worth reviewing the appointment after any significant change in your relationships, and an enduring power of attorney is generally revoked as to your spouse if your marriage ends, which is a common gap after a separation.

Enduring power of attorney lawyers in Ipswich

Three kinds of decision, and they do not start at the same time

Choosing an attorney, and what happens if you do not have one

Looking for a different estates service?

Wills

Succession planning

Estate administration

Estate disputes

Conveyancing

Property law

Family law

Commercial law

Wills and estates

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