Last updated 15 July 2022
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 that 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.
General powers of attorney
Chapter 2 of the Powers of Attorney Act 1998 (Qld) (Powers of Attorney Act) makes provision for general powers of attorney.
A general power of attorney is a document in which a principal authorises one or more attorneys to do anything that the principal can lawfully do and is capable of doing. A general power of attorney excludes personal matters (see Enduring Powers of Attorney). A general power of attorney document must also provide terms or information about exercising the power (s 8 Powers of Attorney Act).
In a general power of attorney, a principal may specify when and in what circumstances the power can be exercised. If the document does not specify a time when it is exercisable, it will begin immediately after it is made (s 9 Powers of Attorney Act).
A general power of attorney made under the Powers of Attorney Act must be in the approved form. It must be signed by the principal or at the direction and in the presence of the principal (s 11 Powers of Attorney Act).
In a general power of attorney, the principal can appoint one or more attorneys to be either joint or several attorneys (s 13 Powers of Attorney Act).
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).
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 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 (pt 7 Public Trustee Act 1978 (Qld)).
Revocation of a general power of attorney
A general power of attorney will be revoked:
- by a written document from the principal revoking it (s 17 Powers of Attorney Act)
- if the principal becomes a person who has impaired capacity (s 18 Powers of Attorney Act)
- at the death of the principal (s 19 Powers of Attorney Act)
- according to the terms of the power of attorney (i.e. if the power of attorney is expressed to operate for or during a specified period, the power of attorney is revoked at the end of that period; or if the power of attorney is expressed to operate for a specific purpose, it is revoke when the purpose is achieved) (s 20 Powers of Attorney Act).
Being of impaired capacity does not just mean that the person cannot communicate. In a case where the person is still capable but is not able to communicate their decisions, the Supreme Court is empowered to confirm that the power of attorney remains in full force and effect if the court is satisfied that the continuation of the attorney is for the benefit of the principal.
When revoking a general power of attorney, the principal must take reasonable steps to advise each attorney affected by the revocation. In the event that the general power of attorney has been registered, it must be deregistered (s 16 Powers of Attorney Act).
A general power of attorney can also be revoked by the attorney, for example if the attorney resigns, becomes a person who has impaired capacity, becomes bankrupt or dies (ch 2 pt 3 div 4 Powers of Attorney Act).