What is a power of attorney?
A power of attorney is a legal document giving someone you choose and trust the legal authority to make decisions on your behalf. There are two types:
Enduring power of attorney
With an enduring power of attorney, you can nominate someone to make important decisions for you should you become unable to make decisions for yourself in the future. Everyone 18 and over can put this legal document in place to ensure that someone you trust can look after you and your interests should anything happen to you.
Your attorney can help you manage your finances, and personal/health matters, if you lose capacity to make your own decisions. Impaired decision-making capacity can happen to anyone at any time, due to illness, injury or disability. You may lose capacity for a period of time due to a serious accident or health condition or it may be a longer-term situation such as the onset of dementia.
General power of attorney
A general power of attorney typically lasts for a set time. You might choose this option if you are going overseas and need someone to handle your matters temporarily.
A general power of attorney becomes invalid if you lose capacity to make decisions. Your attorney under a general power of attorney can only make financial decisions and not personal/health decisions.
Real-world example—What can happen without an enduring power of attorney in place
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Sally and Jake have been married for 10 years. They have two children and jointly held bank accounts, a home mortgage and the usual bills. Sally was the victim of a car accident and suffered an ongoing loss of decision-making capacity, which resulted in large medical bills, and their home was no longer suitable for Sally’s accessibility needs. Even though Sally and Jake were married, their house could not be sold unless Jake was granted the role of formal decision maker through a hearing with the Queensland Civil and Administrative Tribunal (QCAT). If Sally had made an enduring power of attorney appointing Jake as her attorney, he could have sold the house without the need to go to QCAT. He could have used his authority under the enduring power of attorney to sign on Sally’s behalf.
Who should have an enduring power of attorney in place and what are the benefits?
An enduring power of attorney is an important part of life-planning for anyone aged 18 and over. Life is unpredictable and having this in place gives you the peace of mind that a person or people you trust will make important decisions on your behalf, should the need arise.
There are benefits of planning ahead and having an enduring power of attorney in place:
- You and your family can have peace of mind over who will make decisions on your behalf if your decision-making abilities are impacted.
- You decide who will act on your behalf and make decisions if you cannot in the future.
- The people you trust will be legally authorised to advocate for you if you need it.
- You can be confident that you have expressed your wishes to the people you trust.
Read our Frequently asked questions (FAQs) for information about what can happen when you don’t have an enduring power of attorney in place.
What an enduring power of attorney can do
Under an enduring power of attorney, your nominated attorney(s) can help to make decisions about financial and personal/health matters.
Some examples of financial matters they might support you with are:
- day-to-day tasks like paying your bills
- operating and managing your bank accounts
- managing property matters, such as buying, selling or renting
- preparing tax returns.
Some examples of personal/health matters they might support you with are:
- making medical and healthcare choices around things like treatments and medicine
- living arrangements
- provision of support services
- supporting you with training and employment.
Most importantly, it’s for you to decide who your attorney is.
Who can be an attorney?
To be eligible to be an attorney, a person must:
- have capacity to make decisions they are appointed for
- be 18 or older
- not be
- your paid carer or not have been your paid carer in the past three years. (A paid carer is someone paid a fee or wage to care for a person but not someone receiving a carer’s pension or benefit)
- your health provider
- a service provider for a residential service where you live
- bankrupt or taking advantage of the laws of bankruptcy, if appointed for financial matters.
Things to consider when making an enduring power of attorney
An enduring power of attorney is an important legal document. You may want to consider the following things:
- Decide what things you would want your attorney(s) to do in terms of making financial and personal/health decisions.
- Decide who you would want as your attorney to make decisions on your behalf. It should be someone you trust and who knows you well. It’s common for people to choose family members.
- If you don’t want to choose a relative or a friend, you could consider choosing a solicitor, an accountant or a trustee organisation (for financial matters) or the Public Guardian (for personal/health matters).
- When choosing your attorney, think about whether they have the skills and experience as well as an understanding and full respect for your views and wishes. For example, you might choose a financial attorney who is good with financial matters so they can look after your bank accounts and other investments like superannuation.
How to put an enduring power of attorney in place
An enduring power of attorney can be made at any time and is often done at the same time as you make your Will as they are both life-planning documents. You can prepare your enduring power of attorney:
- with an expert who can help you prepare a power of attorney document in line with your wishes, such as a lawyer or a trustee organisation (like Queensland Public Trustee)
Find a solicitor - by downloading the power of attorney form (including an enduring power of attorney) from the Queensland Government website and arranging to complete it yourself. It is helpful to read the Enduring power of attorney - explanatory guide before completing the document. An enduring power of attorney needs to be witnessed by eligible witnesses, so it is important to check who can do that for you.
Learn more about Queensland Public Trustee enduring power of attorney services.
Frequently asked questions (FAQs)
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If you don’t have an enduring power of attorney, it could cause problems for your family if your decision-making ability becomes impaired.
For example, no one may be able to access your bank accounts to pay your bills, family conflict may arise when deciding who makes decisions about personal/health matters for you and there may be delays if there is a need to formally appoint someone to make decisions for you.
If someone needs to make decisions for you, and there is no enduring power of attorney, then the Queensland Civil and Administrative Tribunal (QCAT) may become involved to hold a hearing to have someone appointed. This decision will be made by QCAT rather than you.
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An attorney is the person you name in an enduring power of attorney to make decisions for you or act for you when you are unable to. You can have more than one attorney. Attorneys can be appointed to manage your financial matters and/or your personal and health matters.
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Yes, you can have more than one attorney in place. If you do have more than one attorney, you must decide whether you want them to act jointly (all must agree) or whether they can act independently (severally—act without other attorneys agreeing) or by majority (majority agree).
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In your enduring power of attorney document, you can direct your attorney to provide information to one or more people about your financial or personal matters. You might choose to do this if you want other family members to have the information but not ‘power’ to take actions, for example. The people you nominate to receive this information are called your nominated persons. Read this guide for more information about nominated persons.
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Yes, it can be changed or cancelled if you still have capacity to make this decision.
You should consider whether you need to update or change your enduring power of attorney if your relationship status changes such as divorce, marriage or ending of a de facto relationship.
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No, your attorney cannot continue to act under the enduring power of attorney as the enduring power of attorney is cancelled when you pass away.
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Where your attorney lives is an important consideration when choosing an attorney. Someone living overseas may have a lot of trouble trying to support you with financial matters or make health decisions for you, especially when they cannot be with you.