Many Queensland families discover that an enduring power of attorney matters most at the moment there is no time left to make one. If a person loses the ability to make decisions and no enduring power of attorney is in place, someone else has to apply to a tribunal for the authority to act on their behalf, a process that takes time and can create real difficulties for the people closest to them.
An enduring power of attorney is a legal document that lets a person choose, while they still have capacity, who will manage their financial or personal affairs if that capacity is ever lost. It is one of the most practical documents a person can put in place, and it works alongside a will to cover situations a will cannot, since a will only takes effect after death. The Queensland Government recommends getting independent legal advice before making one.
Lawyers in Springfield and Ipswich help clients across Greater Springfield and Ipswich understand these documents, get them right the first time, and make sure the right people are in place to act when it matters most.
Here is how an enduring power of attorney generally works in Queensland, and what to consider before putting one in place.
Key takeaways
- An enduring power of attorney continues after the principal loses capacity; a general power of attorney does not.
- Without one, QCAT may need to appoint a guardian or administrator to make decisions.
- Personal decisions only operate when the principal lacks capacity; financial powers can start earlier.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What is an enduring power of attorney in Queensland?
An enduring power of attorney is a legal document in which a person, called the principal, appoints one or more trusted attorneys to make personal or financial decisions on their behalf, according to the Queensland Government. The word "enduring" means the document continues to operate even if the principal later loses the capacity to make decisions, which is the key difference between this document and a general power of attorney.
The document does two things at once. It identifies who the attorney is and what decisions they can make. It also records the principal's views, wishes and preferences, which the attorney must take into account when acting. An attorney appointed under an enduring power of attorney is not simply given authority; they are required to use that authority in a way that reflects what the principal would have wanted.
A general power of attorney, by contrast, covers financial matters while the principal has capacity and ends automatically if capacity is lost. It is typically used for a specific transaction or a period when the principal is away, not as a long-term planning document.
What decisions can an enduring power of attorney cover?
An enduring power of attorney can cover personal matters, financial matters, or both, according to the Queensland Government. The principal chooses the scope when the document is made, and different attorneys can be appointed for each type of decision.
Personal matters an attorney can manage include:
- › Where and with whom the principal lives: accommodation, support services and living arrangements.
- › Health care: day-to-day health decisions, though not the special health care categories that require a separate process.
- › Legal matters: non-financial legal matters such as making a complaint or taking a civil proceeding.
Financial matters an attorney can manage include:
- › Paying expenses: bills, rates, loan repayments and day-to-day costs.
- › Investments and bank accounts: managing existing investments and transacting on accounts.
- › Buying and selling property: including the principal's home, which makes the choice of attorney particularly significant for property owners in Springfield and Ipswich.
- › Carrying on a business: managing business interests, subject to the terms of the document.
There are things an attorney cannot do under any circumstances, according to the Office of the Public Guardian. An attorney cannot make or change the principal's will, vote on their behalf, make decisions about the principal's children or other dependants, or act illegally or unethically. An attorney is also not permitted to override the principal's own views and wishes unless doing so is impossible or would cause harm.
When does an enduring power of attorney start operating?
The starting point for an enduring power of attorney depends on the type of decision involved, according to the Queensland Government.
For personal decisions, the power operates only when the principal has lost capacity for that decision. An attorney has no authority to make personal decisions while the principal can still make those decisions independently.
For financial decisions, the principal chooses when the power begins. The options are:
- › From the moment the document is signed.
- › From a set date in the future.
- › When a particular circumstance arises, such as a diagnosis.
- › When the principal loses capacity for financial decisions.
This flexibility matters. A principal who wants their attorney to be able to assist with day-to-day banking while they are still well can build that in. A principal who only wants the document to activate if capacity is lost can do that instead. The document records which option applies, and getting this right is one of the practical reasons legal advice is recommended.
"An enduring power of attorney is one of the most important documents a person can have in place before a health event occurs. Once capacity is lost, the ability to make one is gone, and the alternative is a tribunal process that takes time and costs more than a solicitor appointment."
Jade Kickbusch, Principal, Brookwater Legal
Who can make an enduring power of attorney in Queensland?
To make an enduring power of attorney, the principal must be 18 years of age or older, must be making the document freely and voluntarily, and must understand what the document is and what it does, according to the Queensland Government. That understanding of the nature and effect of the document is what is called decision-making capacity for this purpose.
Every adult is presumed to have capacity, according to the Queensland Government. Capacity is not an all-or-nothing state; it is decision-specific, and it can change over time. What matters at the time of signing is that the principal genuinely understands what they are authorising. A solicitor can help confirm that understanding and explain the document before it is signed, which is one of the practical reasons the Queensland Government recommends independent legal advice.
The enduring power of attorney must be in writing, signed and dated before an eligible witness, who must be a justice of the peace, commissioner for declarations, notary public, or Australian lawyer. The witness must certify that the principal appeared to understand the document and was not acting under anyone else's pressure. An attorney cannot witness the document, and neither can the attorney's relative, a paid carer, or the principal's health provider.
How does a solicitor help with an enduring power of attorney in Springfield?
Putting an enduring power of attorney in place is a structured process, and a solicitor's role is to make sure the document actually does what the principal intends.
Step 1: Talk to us
Get in touch with our wills and estates team and we will walk you through what an enduring power of attorney covers, how it differs from an advance health directive, and what questions are worth thinking through before the document is prepared.
Step 2: Work through the decisions
The document requires a series of considered choices: personal, financial or both; which attorneys for which decisions; whether multiple attorneys act jointly, individually or by majority; when financial power begins; and what fallback arrangements apply if an attorney cannot act. A solicitor works through each of these with the principal so the document reflects genuine intentions, not default settings.
Step 3: Prepare and sign the document
The enduring power of attorney is prepared in the correct form under Queensland law. The principal signs before an eligible witness, and each attorney signs an acceptance before they begin acting. If the attorney will be dealing with Queensland land, the document is also registered with Titles Queensland using a Form 16, so that the registration can be produced when property transactions are required. Titles Queensland generally registers correctly prepared dealings within three to five working days.
Step 4: Store and distribute copies
Certified copies go to each attorney, the principal's doctor, their bank and their solicitor. The original is stored securely. There is no central Queensland register for enduring powers of attorney, so it is the principal's responsibility to make sure the right people know where the document is and how to access it when needed.
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When does an enduring power of attorney not cover what you need?
An enduring power of attorney is a powerful document, but it does not cover every situation a person might face. Understanding the limits is as important as understanding what it does.
An enduring power of attorney does not operate after death. Once the principal dies, the attorney's authority ends and the executor named in the will takes over. These two documents serve different periods of a person's life, and both are generally needed for complete planning.
An attorney under an enduring power of attorney cannot make decisions about special health care, a category that includes tissue donation, sterilisation, termination of pregnancy, experimental treatments and electroconvulsive therapy, according to the Office of the Public Guardian. Those decisions require a separate process. An enduring power of attorney also does not automatically give an attorney authority over a superannuation fund, which is governed by the fund's own trust deed and rules rather than Queensland law.
An advance health directive covers a different gap entirely. It records the principal's own directions about future health care, to be followed when they lack capacity, rather than appointing someone else to make those calls. Many people put both documents in place at the same time, since they work together rather than in competition. A solicitor in Ipswich or Springfield can explain how the two documents complement each other and whether both are appropriate in a given situation.
What happens if a principal has no enduring power of attorney?
If a person loses decision-making capacity without an enduring power of attorney in place, the Queensland Civil and Administrative Tribunal may need to appoint a guardian for personal decisions or an administrator for financial decisions, according to QCAT. This is a formal legal process, and the outcome is not necessarily the person the principal would have chosen.
QCAT has the same powers as the Supreme Court over enduring documents and can make wide-ranging orders, but its involvement is the alternative to planning ahead, not a substitute for it. Once capacity is lost, a person can no longer make an enduring power of attorney at all. The option simply closes.
Where no suitable person can be appointed, the Public Guardian may act for personal decisions and the Public Trustee for financial decisions. Both are legitimate services, but they are not the same as having a trusted family member or friend already authorised to act with knowledge of the principal's values, preferences and circumstances.
Frequently Asked Questions
What is the difference between an enduring power of attorney and a general power of attorney in Queensland?
An enduring power of attorney continues to operate if the principal loses capacity; a general power of attorney ends automatically when capacity is lost, according to the Queensland Government. A general power of attorney is typically used for a specific transaction or period, not long-term planning.
Who can be appointed as an attorney under an enduring power of attorney in Queensland?
The attorney must be 18 or older and have decision-making capacity, according to the Office of the Public Guardian. A person cannot be appointed if they are a paid carer of the principal within the past three years, the principal's health provider, or a provider or staff member of the principal's residential service.
Can a principal appoint more than one attorney in Queensland?
A principal can appoint up to four joint attorneys and can specify whether they act together, individually, by majority or in succession, according to the Queensland Government. Different attorneys can also be appointed for personal and financial matters.
Does an enduring power of attorney need to be registered in Queensland?
Registration is only required if the attorney will be dealing with Queensland land, in which case the document is registered with Titles Queensland using a Form 16, according to Titles Queensland. There is no general central register for enduring powers of attorney in Queensland.
Can an enduring power of attorney be revoked in Queensland?
A principal can revoke an enduring power of attorney at any time while they have capacity, using a Form 6 revocation, according to the Queensland Government. A later inconsistent enduring power of attorney also revokes an earlier one to the extent of any inconsistency.
Do you need a solicitor to make an enduring power of attorney in Springfield or Ipswich?
A solicitor is not legally required, but the Queensland Government recommends independent legal advice before making one. A solicitor helps the principal work through the decisions the document requires, ensures it is correctly prepared and witnessed, and confirms it reflects genuine intentions rather than default settings.
What can an attorney not do under an enduring power of attorney in Queensland?
An attorney cannot make or change the principal's will, vote for them, make decisions about the principal's children or dependants, or make decisions about special health care such as experimental treatment or tissue donation, according to the Office of the Public Guardian. Acting illegally or overriding the principal's clearly expressed wishes is also prohibited.
Your Next Steps
An enduring power of attorney is one of those documents where timing is everything. It can only be made while the principal has capacity, and the circumstances that make it most necessary are often the ones that arrive without warning. Having the document in place before it is needed is what gives it its value.
If an enduring power of attorney is on your mind, the next step is a straightforward one. Get in touch with the Brookwater Legal team or call (07) 3437 8555, and we'll talk you through how the process generally works.
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External Resources
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
