Swanwick Murray Roche Lawyers

74 Victoria Parade, Rockhampton QLD 4700   •   (07) 4931 1888

What is an Enduring Power of Attorney?

Enduring power of attorney

An enduring power of attorney is a formal document giving another person the authority to make personal, health and/or financial decisions on your behalf.

Unlike a general power of attorney:

  • For financial decisions, you can nominate whether you want the attorney to begin making financial decisions for you straight away or at some other date or occasion, such as once you’ve lost capacity to make these decisions.
  • Your attorney’s power to make personal decisions only commences when you lose capacity to make these decisions.

How to make an enduring power of attorney

Requirements

To make an enduring power of attorney, you must understand the nature and effect of making an enduring power of attorney, including:

  • the consequences of preparing the enduring power of attorney
  • that you may specify or limit the power to be given to your attorney, and instruct your attorney about the exercise of the power in the enduring power of attorney
  • when the power begins
  • that once the power begins your attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney
  • that you may revoke the enduring power of attorney at any time while you have capacity to do so
  • that the power continues even if you lose capacity
  • if you lose capacity you are effectively unable to oversee the use of the power.

As part of our service to you, we provide this explanation to you and document the understanding.

When doubt arises over whether a person has the capacity to make an enduring power of attorney, the Queensland Civil and Administrative Tribunal (QCAT) can make a decision about that person’s decision-making capacity.

What to bring to your appointment

You will need to bring to your appointment:

  • the full name, contact phone number and residential address for each attorney

We will discuss any other requirements including special conditions with you at the time of your appointment.

What to do with your completed enduring power of attorney 

You should leave your original document in a safe place, such as your solicitor’s document retention safe or in your personal safe.

You should also give a copy to anyone else who may need to be involved, such as:

  • your attorney
  • your doctor
  • your solicitor
  • your accountant
  • your stockbroker
  • your bank
  • each of your attorneys (so that they can use the document)

You do not need to register your completed document unless it is likely to be used in transactions related to buying or selling land. To register your document, take the original document to the Titles Registry and pay the fee. We can attend to this on your behalf if needed.

If the power is revoked, you must deregister the document by lodging a revocation form with the Titles Registry.

Choosing your attorney

When you make an enduring power of attorney, the attorney can make personal and/or financial decisions on your behalf, which will have the same legal effect as if you’d made them yourself (subject to any restrictions you impose in the document).

Find someone you trust who’d be willing to take on the responsibility. They must:

  • be at least 18 years old
  • not be your paid carer (a person receiving a carer’s pension is not considered a paid carer)
  • not be your health provider
  • not be service provider for a residential service where you are resident.
  • be someone that your trust absolutely
  • be someone who is familiar with your financial situation (or you have left instructions for them to be able to inform themselves)
  • be someone who is familiar with your personal and financial desires

For personal/health matters, consider family members or a close friend who understands your personal wishes and health care needs.

For a financial attorney, consider someone who is responsible with their own money and understands financial matters. The person you appoint must not be bankrupt.

Be careful who you choose as your attorney. You’re potentially giving another person total control over your assets and the ability to make personal decisions about your health care and accommodation when you can’t do so yourself.

What an attorney must do

An attorney must:

  • act honestly and with care
  • recognise your right to confidentiality
  • consider your existing supportive relationships, values and culture
  • apply the general principles (PDF, 238KB) under the Powers of Attorney Act 1998.

In relation to health care decisions, an attorney must:

  • ensure any decision made contributes to your health and wellbeing
  • choose the least intrusive method of treatment where possible
  • consider your views and wishes
  • consider the advice of your doctor or other health care providers
  • comply with the health care principle (PDF, 238KB) under the Powers of Attorney Act 1998.

In relation to financial matters, an attorney must:

  • avoid entering transactions that may result, in their interests (or those of attorney’s relations, business associates or close friends) conflicting with your interests
  • keep records and accounts of dealings and transactions
  • keep your property separate from their own (unless it is jointly owned)
  • not give your property away, and make only reasonable gifts for birthday/Christmas presents or donations that you would normally make yourself.

Revoking your enduring power of attorney

You may revoke an enduring power of attorney at any time while you have capacity to make this decision. Contact us immediately if you wish to do so.

Other ways your enduring power of attorney will end

Your enduring power of attorney will end if you:

  • die — If you die, your enduring power of attorney is revoked in its entirety.
  • get married — Unless your enduring power of attorney states otherwise, it is revoked if you get married. However, if your husband or wife is already your attorney, your power of attorney is only revoked to the extent that it gives power to someone other than your husband or wife.
  • get divorced — If you divorce, the power of attorney is revoked to the extent that it gives power to your former spouse.
  • enter into a civil partnership — Unless your enduring power of attorney states otherwise, it is revoked if you enter into a civil partnership. However, if your civil partner is already your attorney, your power of attorney is only revoked to the extent that it gives power to someone other than your civil partner.
  • terminate your civil partnership — If you terminate your civil partnership, your enduring power of attorney is revoked to the extent that it gives power to your former civil partner.
  • make an inconsistent document — Your enduring power of attorney is revoked to the extent of any inconsistency with any later documents you complete, such as an advance health directive or another enduring power of attorney.

It will also end if your attorney:

  • becomes your paid carer or health-care provider — If your attorney becomes your paid carer or health-care provider, your enduring power of attorney is revoked to the extent that it gives that attorney power for a personal matter.
  • becomes incapable — Your attorney’s power is revoked if he or she is no longer capable to make a decision about a matter.
  • withdraws — Your attorney may withdraw by giving you a signed notice or by getting the court’s leave to withdraw.
  • becomes bankrupt or insolvent — If your attorney becomes bankrupt or insolvent, your enduring power of attorney is revoked to the extent that it gives that attorney power for a financial  matters.
  • dies.

If your attorney behaves improperly

In rare cases, attorneys have spent assets unwisely or sold the family home inappropriately. In such cases, the Public Guardian has the power to investigate an attorney and has several options available to resolve the matter to best protect the adult concerned. Additionally, QCAT or the Supreme Court can remove an attorney or revoke an enduring power of attorney.

If an attorney has behaved inappropriately in discharging their duties, you may have rights to pursue the attorney. However, if the attorney has no money or there is no practical way to compensate you for the loss, then you may be unable to be properly compensated for the damage. Often, when an investigation into the activities of an attorney is carried out, the damage is usually done.

Therefore, it is very important that you carefully consider who your attorney is.

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