Enduring Power of Attorney

What is an Enduring Power of Attorney

In Queensland, an ‘attorney’ is a person who is authorised to make particular decisions and do particular other things for another person, known as the ‘principal’. Most commonly, the principal will authorise an attorney (or attorneys) by a document (in approved form) made under the Powers of Attorney Act 1998 (Qld) (the ‘Act’) known as a ‘General Power of Attorney’, ‘Enduring Power of Attorney’ or ‘Advance Health Directive’.

A General Power of Attorney made under the Act may authorise one (1) or more attorneys to do for the principal anything (other than exercise power for a personal matter) that the principal may lawfully do by an attorney, and may provide terms or information about exercising the power. If a principal becomes a person who has impaired capacity, the General Power of Attorney is automatically revoked (although there are also other ways in which a General Power of Attorney will be automatically revoked, or may be revoked by a principal under the Act). An Enduring Power of Attorney and Advance Health Directive, on the other hand, are known as enduring documents, as they are not automatically revoked if the principal becomes a person with impaired capacity. The meaning of the terms ‘impaired capacity’ and ‘capacity’ are defined by the Act.

By an Advance Health Directive made under the Act, an adult principal may give directions about health matters and special health matters for the principal’s future health care, give information about those directions, appoint one (1) or more persons who are eligible attorneys to exercise power for a health matter (which does not include a special health matter) for the principal in the event that the directions prove inadequate, and provide terms or information about exercising the power.

A principal may make an Advance Health Directive only if the principal understands the nature and effect of each direction, and amongst satisfying other capacity requirements, understand the a direction in an Advance Health Directive operates only while the principal has impaired capacity for the matter covered by the direction. By an Enduring Power of Attorney made under the Act, and adult principal may authorise one (1) or more eligible attorneys to do anything in relation to one (1) or more financial matters or personal 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, and provide terms or information about exercising the power.

A decision in respect of a financial matter may extend to the management of the principal’s finances, i.e. paying bills and taxes, selling or renting the principal’s home or other real or personal investment property, or applying the income of the principal for the benefit of the principal, whereas the power to make a decision in respect of a personal matter may relate to the care and welfare of the principal, i.e. where and with whom the principal will live and other day-to-day personal decisions that may need to be made on behalf of the principal, including health care matters and consenting to medical treatment, but does not include a ‘special personal matter’ or a ‘special health matter’.

A principal may only make an Enduring Power of Attorney if the principal understands the nature and effect of the enduring power of attorney, including those specific matters required to be understood by the principal under the Act. Whilst there are other ways in which an Enduring Power of Attorney is automatically revoked, or may be revoked by the principal under the Act, an Enduring Power of Attorney is automatically revoked on the death of the principal.

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.