A Power of Attorney is a formal legal agreement set out in a written document that gives another person power to make decisions for you while you are alive but unable to act on your own behalf. The legal effect of decisions made by an appointed attorney is the same as if you had made the decisions yourself.
In Queensland, there are two types:
1. General Power of Attorney
This document enables you to grant someone else power to make decisions regarding your financial affairs only for a specific period of time or in respect of a specific event (for example, buying or selling a house while you are overseas). A General Power of Attorney ceases to operate if you become incapacitated.
2. Enduring Power of Attorney
In contrast to a General Power of Attorney, this document grants someone else power to make financial and personal decisions, including health related matters for you, when you are unable to make such decisions for yourself. For example, as a result of incapacitation or unconsciousness.
Making a Power of Attorney
Anyone over 18 years of age can make a Power of Attorney, provided they are capable of:
- understanding the effects and legal implications of the appointment;
- making decisions for themselves; and
- communicating their wishes to their attorney.
A Power of Attorney can be prepared by a lawyer. Alternatively, you can complete one of the prescribed forms yourself. General and Enduring Power of Attorney documents are available online from the Queensland Department of Justice website.
Both the maker of a Power of Attorney and the attorney(s) must sign the document in the presence of a qualified witness. Qualified witnesses include a lawyer,Justice of the Peace, Commissioner for Declarations or Notary Public and cannot be your current paid carer or health provider.
Prior to making a Power of Attorney document, it is recommended that you obtain personalised legal and/or financial advice on your specific circumstances.
Choose an Attorney
You may choose up to three attorneys who may act either jointly (unanimously) or severally (independently of each other).
Choosing an attorney is a serious decision and requires careful thought. Your attorney(s) may have considerable control over your money and assets as well as decisions regarding your personal circumstances or health.
Your attorney(s) should be an adult (18 years and over) who you can trust and who is willing to take on the responsibilities associated with the role. Close family members or friends who are familiar with your personal circumstances are probably a good choice. However, preference should be given to someone who has an understanding of financial matters where appropriate.
Storing your Power of Attorney
Be sure to store the original Power of Attorney document in a safe place that others know about so it can be easily located and accessed. A copy should also be given to each attorney appointed in the document.
Revoking or changing a Power of Attorney
A Power of Attorney can be revoked at any time, provided you have capacity to make decisions of that nature. This can be done by informing your existing attorney in writing. A formal revocation form for this purpose is available from the Queensland Department of Justice website. A replacement attorney may subsequently be appointed in their place.
An Enduring Power of Attorney is automatically revoked when you die, and a General Power of Attorney is automatically revoked if you lose capacity to make your own decisions.