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Home | Wills & Estates Law | Powers of Attorney

What is a Power of Attorney?

If you lose capacity and cannot handle your own affairs, it is important they’re managed by a trusted loved one rather than a government department. Powers of Attorney are formal legal documents that give someone else the power to make decisions for you on your behalf.

There are two types:

  1. General Powers of Attorney (GPOA)
  2. Enduring Powers of Attorney (EPOA)

Another legal document that you may need to consider is an Advance Health Directive (AHD). It is a document that allows you to give directions as to your future health care that will take effect after you lose capacity to make the decision yourself.

If you need more information about Powers of Attorney please contact our specialist Wills and Estates lawyers on 13 43 63. Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.

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FAQ

What is a General Power of Attorney (GPOA)?

General Power of Attorney (GPOA)

Under this type of Power of Attorney, you can only give someone else the power to make decisions on your behalf for a period of time that you have specified. This decision power may include financial decisions and health decisions for the specified timeframe. For example if you have left the country for an extended period of time you are allowing another person, i.e. your Attorney, to pay your bills on your behalf.

This General Power of Attorney only lasts whilst you have capacity and you are able to make your own decisions. However this power ends when you lose your capacity to be able to make decisions.

A typical example of a General Power of Attorney is appointing someone as your Attorney to pay bills on your behalf while you are overseas.

A General Power of Attorney will be revoked (cancelled) if:

  • The principal (you, the person making the Power of Attorney) loses the mental capacity to manage your own affairs;
  • You cancel (revoke) it by using a document called a deed of revocation;
  • You die; or
  • Your Attorney (the person appointed to act on your behalf) becomes bankrupt, or loses the mental capacity to act.

What is an Enduring Power of Attorney (EPOA)?

Enduring Power of Attorney (EPOA)

Enduring Power of Attorney is one of the most powerful documents that you can sign. It is a document which allows you to appoint another person to make decisions on your behalf regarding your personal and financial affairs.

The word “Enduring” simply means that the power continues even after you lose your capacity to make decisions yourself.

Some important facts about EPOA’s are as follows:

  • The person you appoint is called an Attorney.
  • You can prepare your EPOA so the appointment of an Attorney only takes effect if you have lost capacity.
  • An Attorney is not required to have any qualifications to be appointed, however they have to meet certain criteria, such as they must be over 18 years of age and they must not be bankrupt.
  • You may specify or restrict the power of your Attorney for example a joint appointment of more than one Attorney may require decisions to be made unanimously by the Attorneys.
  • An EPOA enables you to decide who will make financial and/ or personal/health decisions for you if you lose capacity.
  • Personal/health matters - include where and with whom you live; day to day issues like diet and dress and whether to consent to particular health care on your behalf.
  • Financial matters - include all financial matters such as receiving income, paying bills, investments and financial planning.
  • For financial and legal decisions, you can specify when your Attorney can act, for example:
    • Immediately; or
    • Only if you lose your capacity.
  • If you are ever in circumstances where you cannot manage your affairs yourself, an Enduring Power of Attorney is an important tool to ensure your affairs are managed by a person of your choice.
  • If you do not have an Enduring Power of Attorney, there is a process for people to apply to the Queensland Civil and Administrative Tribunal to be appointed as your Attorney. In these circumstances, a person who applies to be appointed may not be your preferred person.
  • Making an EPOA now allows you to choose who will make these decisions for you if the time ever comes when you cannot make these decisions yourself.

Why give someone Enduring Power of Attorney (EPOA)?

Benefits of an Enduring Power of Attorney (EPOA)

An EPOA enables you to decide who will make financial and/or health decisions for you if you lose capacity.

  • Personal/health matters - include where and with whom you live; day to day issues like diet and dress and whether to consent to particular health care for you.
  • Financial matters - include all financial matters such as receiving income, paying bills, investment and financial planning.

If you lose the mental ability to look after yourself, either temporarily or permanently, your financial attorney may have complete control over all your assets, and your personal/health attorney may have complete control over your personal and lifestyle matters.

What happens if you lose capacity and you don't have an EPOA

If you lose capacity to make decisions for yourself and you do not have a current valid EPOA, the Guardianship and Administration Tribunal may be required to make an Order appointing the Public Trustee, another Trustee company or some of your family or friends to act as your Administrator.

If you lose mental capacity as a result of illness or accident and you do not have an EPOA, the Public Trustee will be your administrator until the Guardianship and Administration Tribunal makes other orders. Making an EPOA now allows you to choose who will make these decisions for you if the time comes.

I have an Enduring Power of Attorney in place but want to make changes

Can I make changes to my EPOA?

You can make changes to your EPOA at any time as long as you still have capacity to do so.

How to make changes?

To make changes to an EPOA you must execute a Revocation of Enduring Power of Attorney Form and serve it on the Attorney/s you wish to remove, notifying them of your decision.

When should you review your EPOA?

We recommend you review your EPOA every 3-5 years to ensure you are still happy with the people you have appointed as your Attorney/s.

Our Wills and Estates lawyers can help

For more information about Enduring Powers of Attorney, please contact Turner Freeman Lawyers‘ Wills and Estates Department on 13 43 63.

Who should I appoint as Attorney?

Who should I appoint as my attorney?

We recommend you appoint someone you trust. This person needs to be over the age of 18 years, cannot be a paid carer or health-care provider. This person also cannot be bankrupt or insolvent.

Specifying an alternate attorney

We suggest to our clients that they sign an enduring power of attorney and not only name their preferred attorney but to also specify an alternate attorney in case their first choice is unable to act.

How can I get Power of Attorney?

To become a Power of Attorney you must be nominated by someone who is capable to do so, and then sign the relevant legal documentation. This ensures both you and the person giving you Power of Attorney are protected under state and Federal laws.

While it is uncommon, there are times when Powers of Attorney have made inappropriate decisions about the principal’s estate while acting as Powers of Attorney. These include spending the principal’s money inappropriately or selling their home. In these instances Powers of Attorney can be investigated and prosecuted, and their Powers of Attorney revoked.

Who should I appoint as my Attorney?

Who should I appoint as my Attorney?

We recommend you appoint someone you trust. This person needs to be over the age of 18 years, cannot be a paid carer or health-care provider. This person also cannot be bankrupt or insolvent.

We suggest to our clients that they sign an enduring power of attorney and not only name their preferred attorney, but to also specify an alternate attorney in case their first choice is unable to act.

More information on Powers of Attorney

We have developed the information booklet below that summarises our Powers of Attorney services and process.

Turner Freeman Lawyers Enduring Power Of Attorney information
Turner Freeman Lawyers General Powers Of Attorney information sheet

 

 

 

 

 

To view and print this PDF file, you will need to have the Adobe Acrobat Reader software installed, which is available for free-of-charge from the Adobe website.

If you would like to request a copy of any of our printed materials, please complete the Contact Us form and we will gladly post them out to you.

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