Last updated 5 December 2016
An enduring power of attorney provides an authorisation to allow the attorney to continue to act and make decisions, even when the principal no longer has the capacity to manage their own affairs (s 32 Powers of Attorney Act 1998 (Qld) (Powers of Attorney Act)). So, for example, enduring powers of attorney would be useful for a couple running a business, because if either person became incapable of managing their own affairs, the capable person could act on behalf of their partner with the disability, and the business could continue without too much inconvenience.
The principal can exercise some control over the way the attorney acts. One of these is that the principal may limit the types of financial power that an attorney can exercise. For example, the principal can include in the document that the attorney does not have the power to sell the family home. Another way to place a check on the attorney’s power is to nominate two (or more) attorneys for certain types of decisions. This means that even if one attorney turns out to be unscrupulous, their power to abuse their position is reduced by the other attorney.
Who can be appointed?
To be eligible to be appointed an enduring power of attorney (s 29 Powers of Attorney Act), a person must:
- be 18 years of age or over
- not be a paid carer or health provider of the principal
- not be a bankrupt or have any arrangement in place under the Bankruptcy Act 1966 (Cth) in relation to their financial affairs (s 57 Powers of Attorney Act) if being appointed as an attorney for financial matters.
The following can also be appointed as an enduring attorney:
- the Public Trustee for financial matters
- a trustee company
- the Public Guardian, but only for personal matters.
Most importantly, a principal must be able to trust the person that they appoint as their attorney, as a person without legal capacity is highly vulnerable to abuse from an unscrupulous attorney.
To be effective, an enduring power of attorney must not only be signed by the principal, but also witnessed by an eligible witness.
An eligible witness is a person who is:
- a justice of the peace, a commissioner for declarations, a notary public or a lawyer
- not a person signing the document for the principal (namely the eligible signer)
- not an attorney of the principal
- not a relation of the principal or a relation of the attorney of the principal
- not a paid carer or health provider of the principal if a document gives power for a personal matter (s 31 Powers of Attorney Act).
The word ‘relation’ is defined in sch 3 to the Powers of Attorney Act to refer to a spouse, a person related to the principal by blood, marriage, adoption, de facto or foster relationship, a person upon whom the principal is dependent, a person who is dependent on the principal and a person who is a member of the principal’s household.
The eligible witness must also complete a certificate in the document that the principal appeared to have the capacity to make the enduring power of attorney (s 44 Powers of Attorney Act). Section 41 of the Powers of Attorney Act provides some assistance to the eligible witness in determining whether the principal has the necessary capacity, and specifically that the principal needs to understand when the power begins and that:
- they may specify or limit the power being given
- they can specify when the power begins for financial matters
- once the power begins, the attorney will have full control over the matters, subject to express limitations in the power
- the principal may revoke the power at any time while capable
- after the principal has lost decision-making capacity, the power continues and the principal will be unable to revoke the power or effectively oversee the use of the power.
What powers can be given
In an enduring power of attorney, a person can authorise one or more persons to do anything in relation to one or more financial, personal or health matters for the principal.
Financial matters relate to the principal’s financial, property and legal affairs. Personal matters relate to the principal’s care or welfare and are defined as:
- where the principal may live
- with whom the principal may live
- whether the principal works and, if so, the kind and place of work and the employer with whom the person should work
- what educational training the principal should take
- whether the principal applies for a licence or permit
- day-to-day issues such as diet and dress
- whether to consent to a forensic examination of the principal
- the health care of the principal
- a legal matter not relating to the principal’s financial or property matters.
Health matters relate to the health care of the principal and are also defined in pt 2 of sch 2 of the Powers of Attorney Act as the care, treatment, service or procedure for the health of the principal:
- to diagnose, maintain or treat the principal’s physical or mental condition
- to be carried out by, or under the supervision of, a health care provider.
Healthcare includes withholding or withdrawal of a life-sustaining measure for the principal if the continuation or commencement of the measure would be inconsistent with good medical practice. Life-sustaining measure and good medical practice are defined in the schedule.
However, health care does not include:
- first aid treatment
- a non-intrusive examination made for diagnostic purposes
- the administration of a pharmaceutical drug in certain circumstances.
What powers cannot be given
The Powers of Attorney Act specifically excludes certain powers that may never be exercised by an enduring power of attorney (s 32). They are defined as special personal matters and special health care matters (sch 2 Powers of Attorney Act).
A special personal matter is:
- making or revoking the principal’s will
- making or revoking a power of attorney, an enduring power of attorney or advance health directive
- exercising the right to vote
- consenting to the adoption of a child
- consenting to the marriage of the principal
- entering into a surrogacy arrangement or consenting to the making or discharging of a parentage order under the Surrogacy Act 2010 (Qld).
Special health care matters are:
- removal of tissue from the principal while alive for donation
- sterilisation of the principal
- termination of pregnancy of the principal
- participation of the principal in special medical research or experimental health care
- electroconvulsive therapy or psychosurgery for the principal
- other special health care of the principal prescribed by regulations.
An attorney is required to comply with the general and health care principles (outlined above) in the exercise of their powers.
There are some other provisions in the Powers of Attorney Act that an attorney for financial matters also needs to be aware of:
- In certain situations, an attorney can make a gift as part of the exercise of their power on behalf of the principal. The Powers of Attorney Act allows the attorney to make a gift to a relation or close friend of the principal. Also, an attorney can make charitable donations that the principal might reasonably be expected to make (s 88 Powers of Attorney Act).
- Subject to the terms of the enduring power of attorney, the attorney is authorised to provide for the reasonable needs of the principal’s dependants (s 89 Powers of Attorney Act).
- An attorney has the right to all information that the principal would be entitled to about themselves in order to make informed decisions which the attorney is authorised to make (s 81 Powers of Attorney Act).
How many attorneys can be appointed?
There are now a significant number of options available to a person in the appointment of an attorney, such as:
- one or more attorneys
- different attorneys for different purposes
- attorneys in succession, namely on the death or loss of capacity of a prior attorney
- alternative attorneys in circumstances stated in the powers of attorney
- joint and several attorneys
- two or more attorneys being able to make a majority decision (s 43 Powers of Attorney Act).
The form of the enduring power of attorney
Section 44 of the Powers of Attorney Act provides that the enduring powers of attorney must be in the approved form and sets out the requirements of the document.
The short version is for those people wishing to appoint the same attorney or attorneys for both financial and personal matters. The long form is used for the appointment of different attorneys for different purposes.
When does an enduring power of attorney start?
For financial matters, an enduring power of attorney may come into effect on a date or event as specified by the principal in the document namely:
- on an event (e.g. incapacity)
- on a specified date.
If the principal does not specify when the power begins, it will begin immediately.
For personal matters, an enduring power of attorney will only come into effect once the principal has lost capacity to make personal decisions.
Revoking an enduring power of attorney
A principal must have the same level of capacity to revoke an enduring power of attorney as they had to make it. An enduring power of attorney may be revoked by signing a revocation of the power of attorney (s 47 Powers of Attorney Act).
An enduring power of attorney is automatically revoked by:
- the death of the principal or an attorney (to the extent that it gives power to the deceased attorney)
- the marriage of the principal to someone other than the attorney (unless a contrary intention is expressed in the enduring power of attorney)
- the divorce of the principal, in so far as it gives any power to the divorced spouse
- a later power of attorney to the extent of any inconsistency
- the resignation or death of the attorney
- the incapacity of the attorney
- bankruptcy or insolvency of an attorney for financial matters
- an attorney for personal matters becoming a paid carer or health provider for the principal or a service provider for a residential service where the principal is a resident.
The document may also specify when it will end. This is called revocation according to terms (ss 50–59 Powers of Attorney Act).