How to make an Enduring Power of AttorneyThe below information is from the Public Trustee Qld. Reference: www.pt.qld.gov.au
RequirementsTo 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.
s41 Powers of Attorney Act Qld sets of Principal’s capacity to make an enduring power of attorney
Note— However, under the general principles, an adult is presumed to have capacity — schedule 1 , section 1 .
(2) Understanding the nature and effect of the enduring power of attorney includes understanding the following matters—
(b) when the power begins;
(c) once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney;
(d) the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power;
(e) the power the principal has given continues even if the principal becomes a person who has impaired capacity;
(f) at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power.
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 formYou 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)
- 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.)
What to do with your completed formYou 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
If the power is revoked, you must deregister the document by lodging a revocation form with the Titles Registry.
Choosing your attorneyWhen 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 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 attorneyWhen 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.