An Enduring Power of Attorney allows you to appoint one or more people you trust to make certain decisions on your behalf. The person you appoint is called your attorney.
You can appoint an attorney to make financial decisions for you, such as dealing with your bank accounts, property or other financial affairs. You can also appoint an attorney to make personal decisions, including decisions about your health care, if you are unable to make those decisions yourself.
Having an Enduring Power of Attorney means you can choose who you trust to make decisions for you if you are unable to make them yourself. Without one, your family or others close to you may need to take additional steps to obtain authority to make decisions or manage your affairs.
Questions about Enduring Powers of Attorney
Who can I appoint as my attorney?
You can appoint an adult (18 years or older) whom you trust to act as your attorney. The person should be responsible, willing to take on the role and have capacity to make the decisions they are appointed to make.
There are restrictions on who can be appointed. Your attorney cannot be:
- your paid carer, or someone who has been your paid carer within the previous 3 years (this does not include someone receiving a carer’s pension or benefit);
- your health care provider;
- a service provider for a residential service where you live; or
- bankrupt or taking advantage of the laws of bankruptcy, if they are being appointed for financial matters.
Beyond meeting the legal requirements, it is important to think carefully about who you trust to make decisions for you and whether they are likely to be willing and able to take on the role when needed.
Can I appoint more than one attorney?
Yes. You can appoint more than one attorney and decide how you want them to make decisions.
For example, you may appoint attorneys to make decisions together, separately, or in another combination permitted by the document. How you appoint multiple attorneys is important because it can affect how easily decisions can be made in practice.
What decisions can my attorney make?
The decisions your attorney can make depend on the authority you give them.
For financial matters, this may include dealing with bank accounts, paying expenses, managing investments or dealing with property and other financial affairs.
For personal matters, including health matters, an attorney may make decisions about matters such as where you live, the support or services you receive and aspects of your health care when you do not have capacity to make the particular decision yourself.
Your attorney can only act within the authority given to them and there are some decisions an attorney cannot make on your behalf.
When does an Enduring Power of Attorney come into effect?
For personal matters, including health matters, your attorney can only make a decision for you when you do not have capacity to make that particular decision yourself.
For financial matters, you can specify when your attorney’s power begins. This may be immediately, from a particular date or circumstance, or when you no longer have capacity to make financial decisions yourself.
What responsibilities does my attorney have?
An attorney has important legal responsibilities when acting for you. They must act honestly and with reasonable diligence, act in accordance with the terms of their appointment and comply with the duties imposed on attorneys by law.
They must also keep their own property and money separate from yours and keep appropriate records of transactions and decisions they make on your behalf.
Being appointed as an attorney is therefore more than simply being named as someone’s trusted person, it carries responsibilities and obligations.
Can I change or revoke my Enduring Power of Attorney?
You can revoke your Enduring Power of Attorney while you have capacity to do so. If you want to change who you have appointed or how your attorneys are to act, it may be appropriate to revoke your existing document and make a new Enduring Power of Attorney.
An Enduring Power of Attorney, or an attorney’s authority under it, can also be affected by changes in circumstances. For example:
- marriage;
- divorce; and
- an attorney’s authority may end if they die, resign, lose capacity, become bankrupt or become your paid carer or become your health care provider.
An Enduring Power of Attorney also ends when you die. From that point, your Will and the administration of your estate become relevant.
If your circumstances change, it is important to review the document rather than assume that your existing arrangements continue to operate in the way you intended.
When should I review my Enduring Power of Attorney?
You should review your Enduring Power of Attorney when your circumstances or relationships change, or when the circumstances of someone you have appointed as an attorney change.
For example, you may need to reconsider your arrangements following marriage, separation or divorce, if an attorney dies or loses capacity, or if the person you appointed is no longer someone you want or are able to have making decisions for you.
What happens if I don't have an Enduring Power of Attorney and lose capacity?
If you lose capacity without having appointed an attorney, there may be no one with automatic authority to make some decisions or manage certain affairs for you.
Depending on the circumstances, a family member or another interested person may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) for the appointment of an administrator for financial matters or a guardian for personal matters.
Having an Enduring Power of Attorney in place while you have capacity allows you to choose who you want to make decisions for you, rather than leaving that issue to be dealt with after you have lost the ability to make the appointment yourself.
How we can help
Choosing who will make decisions for you if you are unable to make them yourself is an important part of your estate planning.
We can help you prepare an Enduring Power of Attorney that reflects your circumstances and the decisions you want your attorneys to be able to make. We will talk with you about who you are considering appointing, when their authority should begin and, if you appoint more than one attorney, how you want them to make decisions.
If you already have an Enduring Power of Attorney, we can review it with you and advise whether it continues to reflect your wishes and circumstances.