Enduring Power of Attorney

Choosing the right attorney

Choosing an attorney

An ‘attorney’ is a person who is authorised to make particular decisions and do particular other things for another person, known as the ‘principal’. Following the commencement of the Powers of Attorney Act 1998 (Qld) (the ‘Act’), a principal may appoint an attorney pursuant to an ‘enduring document’, such as an ‘enduring power of attorney’ (the ‘EPOA’), to do anything in relation to one (1) or more financial matters or personal/health matters for the principal that the principal could lawfully do by an attorney if the principal had capacity for the matter when the power is exercised. Moreover, the principal may provide terms or information (i.e. restrictions or limitations) about how the power is to be exercised under the EPOA.

Eligible attorney

Under the Act, an eligible attorney means:

  • a person who is:
    • at least 18 years; and
    • not a paid carer, or health provider, for the principal; and
    • not a service provider for a residential service where the principal is a resident; and
  • if the person would be given power for a financial matter, not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a similar law of a foreign jurisdiction; or
  • the public trustee; or
  • a trustee company under the Trustee Companies Act 1968 (Qld); or
  • for a personal matter only, the public guardian.

Additional factors to remember

Despite the fact that a person may, technically speaking, be an eligible attorney under the Act, it does not follow that that the proposed attorney is necessarily the right attorney for you. Other important factors to consider when choosing a potential attorney include, without limitation:

  • is the proposed attorney reliable and trustworthy;
  • is the proposed attorney of such age and health to likely have capacity to act as your attorney when the appointment is activated;
  • do you have confidence in the proposed attorney’s skills and ability to exercise the powers under the EPOA for your benefit or in your best interests;
  • is the proposed attorney accessible and available (i.e. does the proposed attorney live in close proximity to you);
  • to what extent may the proposed attorney’s interests conflict with yours (i.e. do you have any shared business, property, financial or other interests with the proposed attorney which may give rise to a conflict if the attorney purports to exercise a power under the EPOA); or
  • if more than one (1) attorney is being appointed, are the proposed attorneys compatible with each other.

Accordingly, if you are thinking about making an EPOA, it is important to give careful consideration to the attorneys that would be best suited to act as your attorneys under the EPOA, and also, about the likelihood that the proposed attorneys will actually accept the appointment, remembering that an EPOA is effective in relation to an attorney only if the attorney has accepted the appointment by signing the EPOA as required.

This commentary is of a general nature only, containing nothing more than some general information for the reader. It is not intended to be legal advice, nor cannot it be relied upon as legal advice. To this end, please read our Website Terms including the disclaimer contained therein carefully. Laws, rules and principles may be subject to sudden and unexpected changes and you should always consult a lawyer about your specific circumstances.

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