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Enduring power of attorney

1. What is an Enduring Power of Attorney?
2. How do I make an Enduring Power of Attorney?
3. How does it work?
4. What type of decisions can my attorney make for me?
5. When does the power begin?
6. What responsibility does the Tribunal have in relation to Enduring Powers of Attorney?

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The following material is for general information and is not legal advice.

You may not always be able to make decisions when you need to. You may be too ill to make choices about your medical treatment, or you could suffer a disability (such as a stroke) that prevents you telling others what decisions you want made.

An enduring power of attorney is an important legal document you prepare to give someone else the power to make personal or financial decisions on your behalf.

To prepare an enduring power of attorney, you need to be an adult capable of making your own personal and financial decisions and you must:

• be able to understand the nature and effect of a decision
• freely and voluntarily make those decisions
• communicate the decisions in some way
• know your assets and income
• know your expenses, bills and debts.

You also need to understand the consequences of preparing the document, its contents and when the power begins.

To execute an Enduring Power of Attorney, you must be an adult with the capacity to make personal and financial decisions. You can give your attorney the power to decide about personal and/or most health matters and the attorney’s power begins only if you become incapable of making decisions. You can also give your attorney power over your finances.

It works like this:

• You sign a form giving power of attorney to a person/person of your choice
• You specify the types of decisions that the person or persons you choose (your attorney) will make
• The document is witnessed by an eligible witness
• Your attorney agrees to the appointment by signing the acceptance section of the form
• Your attorney can then act on your behalf if necessary

Other online information is available:  

• the Department of Justice and Attorney-General (phone: 07 3239 3520)
• The Public Trustee of Queensland (phone:  07 3213 9288 or 1300 651 591)
• Queensland Law Society (phone 07 3842 5852).

You appoint an ‘attorney’. This person does not need to be a professional or a lawyer. You may select a relative, friend, a professional person (such as your accountant) or someone else you trust and believe has the abilities to carry out your wishes when you can no longer make decisions for yourself.

You should be very careful who you select. Treat an enduring power of attorney with the same care as your will. Remember, you are giving another person total control over your assets, plus the ability to make personal decisions regarding your health and accommodation.

Your attorney’s decisions will have the same legal force as if you had made them yourself, so they must be capable of making decisions for you and respect your wishes.

The powers of your attorney end with your death or if you decide to revoke them.

You can give your attorney the power to:

• decide personal matters such as where you live and who you have contact with
• agree to most health care issues, including medical and dental treatment and withdrawing or withholding of life sustaining measures
• control your finances. For instance, they may collect your income, do your banking, pay your bills and taxes, sell or rent your home if you need the proceeds to pay for care, use your income to pay for your needs, or invest your money.

For personal matters, your attorney’s power begins only if you become incapable of making decisions.

For financial matters, your attorney’s power begins whenever you want. You can choose to give your attorney immediate power or at a particular time. However, if you don’t specify a time, your attorney can make decisions on your behalf straight away; and if you name a particular time and you lose capacity to make decisions before that time, then the enduring power of attorney begins as soon as your attorney is notified of your condition.
 
For these reasons, it is best to carefully consider what you want and take advice first from your solicitor, the Public Trustee or a private trust company.

The Tribunal cannot assist you with enquiries about an enduring power of attorney or how to complete the documentation.  The Tribunal's responsibility is to make declarations about the decision-making capacity of adults who executed an Enduring Power of Attorney and attorneys appointed under an enduring power of attorney. 

However, if an application is made to the Tribunal, the Tribunal will need to be advised if the adult has given anyone an enduring power of attorney and, if so, the name/s and contact details of that person/persons. 

Last updated 2/8/2008

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