Enduring power of attorney in Queensland

Introduction

A power of attorney is a legal document that allows you to nominate someone to act as your decision-maker and manage certain decisions on your behalf. Your decision-maker is known as the ‘attorney’ and you are known as the principal.

In Queensland, a power of attorney can cover:

financial decisions – for example, administering your bank accounts, paying your bills, buying or selling shares, managing your superannuation funds, buying or selling property.
personal or health decisions – for example, where you live, who you live with, your day-to-day life in the community, who you see, what activities you do, which healthcare services you receive.

The power of attorney can authorise your attorney to act in all financial, personal and health matters, or you can choose to appoint an attorney to act only for financial or personal matters.

You can also appoint different attorneys for each role, and you can set limits on the decisions they are able to make – for example, only decisions about buying and selling real estate.

To appoint a power of attorney, you must:

be 18 years of age or older
understand the effect of making a power of attorney

Types of powers of attorney

In Queensland there are two types of powers of attorney. A general power of attorney is used while you still have capacity, while an enduring power of attorney can only be used if you have lost capacity.

Other states and territories have similar documents, although they may have different names and different rules.

You can also make an Advanced Health Directive to specify what health or medical decisions you would like made during periods when you don’t have capacity to make the decisions yourself. This option is about which medical treatments you do or don’t wish to receive, and there’s more information about it further down this page.

1. General power of attorney

A general power of attorney can only be used while you have capacity to make your own decisions, and it can only be used to make decisions about financial matters. It ends if you lose decision-making capacity, so it’s not a future planning tool.

Typically, a general power of attorney is in place for a specific time – for example, if you are travelling overseas or physically injured and therefore need someone else to deal with your finances on a temporary basis.

Under a general power of attorney, your attorney can only act on your behalf for the time period, task or circumstances you have specified. For example, if you regularly travel, you might authorise your attorney to make financial decisions whenever you are overseas.

2. Enduring power of attorney

An Enduring Power of Attorney allows you to appoint someone to make financial decisions and/or personal and health decisions for you during times when you don’t have capacity to make them yourself. You can only make an enduring power of attorney while you still have the capacity to make your own decisions.

You can write down your ‘views, wishes and preferences’ in an enduring power, and your attorney must be guided by these when making any decisions for you after you have lost capacity.

An attorney for personal and health matters can only make decisions for you when you do not have capacity to make those decisions.

However, you can specify when an attorney’s power to make financial decisions will begin, including:

when you do not have capacity to make decisions for financial matters (meaning that your attorney can only make decisions during those times when you do not have capacity to make financial decisions yourself)
immediately (your attorney can start making decisions about all your financial and property affairs as soon as they have signed their acceptance of the role, including while you have capacity)
from a specific date
in particular circumstances or occasions (for example, if you are admitted to hospital, while you are travelling overseas, or when two medical specialists certify that you no longer have capacity for making financial decisions)

If you made an Enduring Power of Attorney or Advanced Health Directive before the legislation changed on 30 November 2020, it is still valid. You do not need to make new ones unless you want to.

Powers of attorney in Queensland are covered by the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000, which you can view on the Queensland Legislation website:

Every Australian state and territory has different rules governing powers of attorney. It’s important to check the rules in other jurisdictions if you think your attorney may need to act on your behalf in financial matters in other jurisdictions.

What is ‘capacity’?

Capacity is a legal term that refers to a person’s ability to make their own decisions. People may have capacity throughout their adult years and look after their own financial and other decisions, but they may lose capacity due to an accident, illness or adverse effects of ageing.

Commonly, an Enduring Power of Attorney begins when a person ‘loses capacity’, which means they can no longer make their own decisions.

You generally have decision-making capacity if you are able to:

understand the information relevant to the decision and the effect of the decision
retain that information to the extent necessary to make that decision
use or weigh up that information as part of the process of making the decision
communicate the decision and your views and needs in some way, including by speech, gestures or other means

In Queensland, it’s assumed that someone has capacity to make their own decisions until it’s proved that they don’t. This means that if their capacity seems to have changed or is unclear, evidence must be gathered to show that their capacity is lacking.

This is often done via consultation with the person’s doctor or other specialists. If there is disagreement about the person’s capacity, the Queensland Civil and Administrative Tribunal (QCAT) will evaluate the evidence and make a decision.

If you would like to know more about capacity in Queensland, here are some good resources:

Other decision-making options

Advance health directives

The advance health directive is a legal document that is used to tell people what medical treatments or decisions you want made during periods where you lack capacity to make those decisions yourself.

It’s a specific, separate document and, along with an enduring power of attorney, is classed as an ‘enduring document’, because it ‘endures’ (continues) after you lose capacity.

You must have a discussion with your doctor to complete a directive, and then have the document witnessed. You and your doctor should discuss various circumstances and scenarios, such as when life-saving interventions should and shouldn’t be used, according to your preferences.

For more information about advance health directives, see the Queensland Government website.

Choosing an attorney

Who can be appointed?

In Queensland you can appoint as your attorney anyone 18 years of age or older who has capacity to make their own decisions. The person you appoint must understand what is involved in the role and agree to take on the role.

Your attorney can be a family member, friend, neighbour or lawyer. For financial decision-making, you can also appoint an accountant or trustee organisation.

Your attorney cannot be:

someone who is your paid carer or has been your paid carer in the last three years
your health provider
your residential services provider where you live
someone who has been bankrupt or is taking advantage of the laws of bankruptcy, if the appointment is for financial decisions

Before choosing someone, you should consider whether they will have any potential conflicts of interest (see ‘Conflicts of interest’, further down this page).

It’s a good idea to think very carefully about who you choose to be your attorney. It should be someone who is unlikely to die before you and is willing, able and available to take on the role. It also needs to be someone who will be most likely to make the decisions that you yourself would have made.

You should discuss your thinking with several people before you make up your mind. To help you think about how to have these conversations, you might like to watch this short film by Seniors Rights Victoria.

Can I have more than one attorney?

In Queensland you can appoint multiple attorneys in an enduring power of attorney. If you do, there are four different ways you can authorise them to make decisions:

individually (known as ‘severally’)
together (known as ‘jointly’)
by majority (which means that more than half the attorneys have to agree)
or a combination of these (for example, you could require all decisions related to real estate to be made jointly but allow each attorney to make individual decisions about spending money for your day-to-day expenses)

If you want all decisions to be made jointly, you can appoint a maximum of four joint attorneys. Otherwise, you can appoint as many as you like.

You can also nominate ‘successive’ or ‘alternative’ attorneys and appoint as many of these as you wish.

A successive attorney is someone who can act on your behalf if one of your other attorneys is no longer able to act due to capacity issues of their own, death or because they wish to resign from the role. (This can be particularly important when making an enduring power of attorney because during periods when you lack capacity, it will not be possible for you to appoint a new attorney.)
An alternative attorney is someone who acts for a specific time, such as when another attorney is overseas.

In this article, ‘attorney’ is used to refer to both one attorney or multiple attorneys.

Conflicts of interest

You should be aware of, and avoid, potential conflicts of interest when appointing someone to act as your attorney. A conflict of interest could arise if you appoint a family member with whom you share property, or a business partner, or anyone else who will benefit from a decision.

A ‘conflict transaction’ is when there is a conflict between an attorney’s duty to the principal and the attorney’s best interest or the best interest of their friends, relatives or associates. An example of this is when there is an interest in a property or business, such as the attorney selling your house to their friend.

Queensland law recognises that while it’s best to avoid these situations, sometimes there are circumstances where ‘conflict transactions’ arise, so protections have put in place to mitigate this.

The attorney should do everything they can to make sure that conflicts of interest don’t arise, but if it does, it can only be because either:

the principal has authorised it (which is complicated if the person no longer has capacity) or
a court or tribunal (that is, QCAT) authorises the transaction to go ahead

If necessary, QCAT can ratify a conflict transaction for an attorney before the transaction is undertaken.

What are the attorney’s responsibilities when acting on my behalf?

Queensland law requires an attorney to act in ways that are in your best interest and reflect or consider your wishes. Your attorney must keep good records of transactions and decisions and keep your finances separate from their own.

In every decision, the attorney must consider ‘your views, wishes and preferences’ and, where possible, work with you to decide what those are. They should support your participation in decision-making wherever they can.

In Queensland you can limit or place conditions or obligations on the attorney’s decision-making power. These limits are called ‘terms and instructions’ or ‘notifications’. For example, you can require them to submit accounts to a nominated accountant every year.

The attorney must also refrain from ‘conflicts of interest’ such as when the attorney (or the attorney’s relatives, friend or business partner) may have a competing interest in the transaction. Read more about this below.

There are also specific rules for financial attorneys in relation to:

gifts and donations
conflict transactions
investments
maintaining the principal’s dependants
record keeping
keeping property separate

For an overview of the responsibilities of an attorney, see here.

What if my attorney is not acting in my best interests?

Powers of attorney are meant to assist you to keep your independence and provide protection against people who may not have your best interests at heart. Generally, they are a very effective tool and work very well for most people. However, sometimes attorneys don’t act in your best interest, whether intentionally or through error or misunderstanding.

While you have capacity, you can revoke a power of attorney at any time if you feel that your attorney is not acting in your best interests or may be taking your money or property. Once you lose decision-making capacity, you will not be able to change or revoke a power of attorney.

However, another person with an interest in your welfare can apply to QCAT to have a guardian or administrator appointed.

The Public Guardian can investigate complaints and allegations about attorneys. They can suspend all or some of the attorney’s powers if they suspect the attorney is not competent and that you, the principal, lack capacity for decision-making.

What happens in Queensland if you lose capacity and don’t have an enduring power?

In this situation QCAT can appoint a guardian or administrator to make decisions for you.

A guardian can only make specific decisions about things like where you live and who you live with, some legal matters, and what services you receive. They cannot make decisions about financial or property matters, certain health care matters, wills, marriage or child relinquishment.

An administrator can only make decisions about money, financial or property matters, including decisions about your pension, superannuation, rental lease, home or other property, and financial legal matters.

QCAT can appoint a family member, friend or relative to these roles. If there is nobody suitable, they may appoint the Public Guardian as guardian or the Public Trustee of Queensland as administrator.

Making and changing

To make powers of attorney in Queensland, you must complete an approved form.

To make a general power of attorney, there is a standard approved form available on the State Government’s publications website.

For an enduring power of attorney, there are two approved forms available, and which one to use depends on how you’ve decided to allocate tasks to your attorneys.

The ‘short’ form (currently Form 2, version 4) is for appointing:
- attorney(s) only for personal (including health) matters
- attorney(s) only for financial matters
- the same attorney(s) for personal (including health) matters and financial matters
The ‘long’ form (currently Form 3, version 4) is for appointing different attorneys for personal (including health) matters and financial matters.

Before completing either the short or long form, you should read the Queensland Government’s explanatory guide, ‘Enduring power of attorney explanatory guide (Queensland)’. This booklet will assist you with completing the forms.

Do I need to have a lawyer prepare my power of attorney?

You don’t have to have a lawyer prepare your documents. If your affairs are simple, you may be able to manage the process yourself. There are lots of kits available that you can download or purchase to help you undertake the process yourself.

However, you can ask a lawyer to do it for you, and seeking independent legal advice on important matters like making a power of attorney is always wise. And if your power of attorney covers a more complex situation, you may need a lawyer so that you can be sure it achieves what you want it to.

Most people will need to pay for any legal advice. However, the Office of the Public Trustee offers a ‘low cost’ service and has special arrangements for people who meet hardship or low income criteria. Visit the Public Trustee’s website for more information, including fees.

Do I have to register my general or enduring power of attorney?

In Queensland you only need to register a power of attorney if the attorney will be involved in the buying and selling of real estate. In this case, you must register your general or enduring power of attorney with Titles Queensland. Visit their website for more information, including fees, forms and procedures.

If the general or enduring power of attorney does not contain authorisations related to finances – for example, if it is only about personal or health decisions – the enduring power of attorney cannot be registered with Titles Queensland.

You should give your attorney a copy of your document and consider giving copies to other important people such as family, friends, carers or your healthcare professionals.

Who can witness a power of attorney?

Both general and enduring powers of attorney must be witnessed, and they can be witnessed by a:

There are some people who cannot witness an enduring power of attorney:

a person signing the document on your behalf if you have physical restrictions
the attorney you are appointing
someone related to you or your attorney
your paid carer
your health provider

Once your enduring power of attorney is signed by you and witnessed, it must be signed by the attorney in the ‘Attorney acceptance’ section. The attorney cannot make any decisions until this section is signed.

If you have multiple attorneys, they must all sign the same page, but their signatures do not have to be witnessed.

Can I use remote witnessing for my power of attorney?

Remote witnessing is when people sign and witness important documents electronically rather than meeting in person and signing in each other’s physical presence. This option can be very useful for people who live in rural, regional or remote areas, or have mobility limitations, or for other reasons can’t leave their homes.

During the global pandemic, temporary rules permitted remote witnessing in Queensland, but these rules expired on 1 July 2021.

This means that enduring powers of attorney in Queensland must be signed on paper and in person. However, general powers of attorney can be signed remotely.

Can I change or cancel my power of attorney?

You can change or cancel (‘revoke’) a general power of attorney at any time. If you registered your power of attorney, you will need to complete a revocation form and notify Titles Queensland. You should also inform your attorney, and it’s recommended you do this in writing so there is a record of the advice.

You can only change or revoke an enduring power of attorney if you still have capacity to make your own decisions. If you no longer have capacity, someone with an interest in your welfare will have to apply to QCAT to have the power of attorney changed or revoked.

Checklist and resources

This checklist will guide you through the process of making an enduring power of attorney (EPOA) in Queensland. It will show you what to think about and connect you to relevant information.

This checklist includes the following:

Background information and resources to help you research and prepare to make an EPOA.
Practical information you will need to consider before completing the EPOA form.
Helpful information to help you complete the EPOA form.
Information about how to correctly sign and witness your EPOA.
Information about registration requirements and tips on where and how to store your EPOA.
Information to assist you should you want to change or revoke your EPOA.

More resources

Office of the Public Guardian

Provides investigation and advocacy for people with impaired capacity, acts as independent guardians, investigates abuse.

Tel: 1300 653 187 (cost of a local call)

Email: publicguardian@publicguardian.qld.gov.au

Website: Click here

ADA Law

Has resources, links and advice for older people and people with disability. ADA may assist people with impaired capacity at their QCAT hearings and provides free support for people living in aged care experiencing elder abuse in South-East Queensland.

Tel: 1800 232 529 (1800 ADA LAW)

Website: Click here

Seniors Legal and Support Service, Caxton Legal Centre

Provides free legal and social work support for older people with decision-making capacity who may be experiencing elder abuse, mistreatment, neglect or financial exploitation.

Tel: (07) 3214 6333
Monday to Friday, 9 am to 4.30 pm

Website: Click here

Queensland Civil and Administrative Tribunal (QCAT)

Can determine who is most suitable to make decisions for adults with impaired capacity, including financial decisions (an administrator) and personal and health decisions (a guardian).

QCAT works in situations where a person’s capacity has been questioned and/or where an attorney may have exploited someone using an enduring power of attorney.

Tel: 1300 753 228

Website: Click here

Public Trustee of Queensland

Provides a service for creating wills and enduring powers of attorney and can be appointed as administrator.

Tel: 1300 360 044

Website: Click here

The Queensland Law Society

Can help you find a member solicitor or law firm.

Tel: 1300 367 757

Website: Click here

What are the chances?, a video on the Office of the Public Guardian’s website, gives a good overview of why you should plan by outlining the probability of things going wrong.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.

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