Last updated 5 December 2016
Appointing an attorney is one way an individual can plan for circumstances where their ability to make decisions may become limited, either through a lack of decision-making capacity or in circumstances where an individual is not available to make decisions.
What is a power of attorney?
A power of attorney is a document by which one person (the principal) authorises another person (the attorney) to act on the principal’s behalf. Usually, the person giving the authorisation will be referred to as the principal and the person receiving the authorisation to act will be referred to as the attorney.
The power to act under a power of attorney can be a general power or a specific power. Powers of attorney are used in many circumstances including in business, commerce and family matters.
Although powers of attorney are frequently granted for buying and selling property, they may be used for almost any purpose. An attorney can be authorised to collect debts, vote at meetings, operate a bank account, make lifestyle or certain health care decisions, or carry out any other function which can be lawfully delegated by one person to another.
A power of attorney can give the attorney the right to legally bind the principal in some, many or all circumstances as if the principal had made the decision themselves.
Proof of an attorney’s appointment
The power of attorney document must be produced whenever an attorney acts on a principal’s behalf (s 14 Powers of Attorney Act 1998 (Qld)).
When is a power of attorney used?
A power of attorney can be useful in many circumstances, including where a person:
- is planning an absence from Australia or Queensland
- has limited physical mobility
- is at an age when they believe someone else is better able to manage their affairs
- would like insurance against the possibility that one day that person may be incapable of making their own decision.
Who can grant a power of attorney?
Any person who is over the age of 18 and who can understand the nature of the document can appoint an attorney. Even people who cannot sign the document because of some physical disability can still make an appointment of an attorney.
People with impaired decision making capacity
A person with impaired capacity can create a valid power of attorney if they can understand the nature and effect of the document.
A trustee who is unable to perform their duties because of a temporary absence from Queensland or a temporary physical incapacity may appoint an attorney (s 56(1) Trusts Act 1973 (Qld)).
A person serving a prison sentence of three years or more cannot give a valid power of attorney if control over their affairs has been vested in the Public Trustee (ss 90–97 Public Trustee Act 1978 (Qld)).