EPOA – How to Make One

How to make an Enduring Power of Attorney

The below information is from the Public Trustee Qld. Reference: www.pt.qld.gov.au

Requirements

To make an enduring power of attorney, the person (principal) 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.

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.

Reference: www.pt.qld.gov.au

s41 Powers of Attorney Act Qld sets of Principal’s capacity to make an enduring power of attorney

Note— If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters.

Complete an enduring power of attorney form

You can complete an enduring power of attorney form yourself. However, you might wish to first talk to your solicitor, the Public Trustee, a private trustee company or a financial planner who can give you professional advice tailored to your circumstances.

Print and complete an enduring power of attorney:

There are two versions of the form available, Short and Long.

Short Form: You would complete this version if you wish to appoint:

• Only personal decision attorneys; or
• Only financial decision attorneys; or
• The same decision attorneys for both personal and financial. (For example, you may wish to appoint both your daughter and son as your attorneys for both personal and financial)

Long Form: You would complete this version if you wish to appoint:

• A different person(s) for your personal decision attorney, to your financial decision attorneys. (For example, you may wish to appoint your daughter only as financial attorney, and your son only as personal decision attorney.)

Link to the forms: Power of Attorney and Advance Health Directive

What to do with your completed form

You should leave your original document in a safe place, such as with your bank, but it’s important to keep a copy to refer to.

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

• your attorney
• your doctor/s
• your solicitor
• your accountant
• your service provider
• your bank

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.

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.

For personal 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.

If you don’t have anyone to choose as your attorney

When you don’t have anyone suitable to appoint as your attorney for personal decisions, you can apply to appoint the Public Guardian, who is an independent statutory officer who protects the rights of adults with impaired capacity.

Read more about appointing the Public Guardian for personal matters

When you don’t have anyone suitable to appoint as your attorney for financial decisions, you can appoint the Public Trustee, who provides

• enduring powers of attorney
• free wills
• investment, executor and financial administration services.

Read about financial decisions by the Public Trustee