Enduring powers of attorney in Queensland: what they are, why you need one, and why it pays to have a solicitor prepare it

What an enduring power of attorney actually is

An enduring power of attorney (EPOA) is a formal document under the Powers of Attorney Act 1998 (Qld) in which you — the principal — appoint one or more people, your attorneys, to make decisions for you.

The word that matters is enduring. An ordinary general power of attorney ends the moment you lose capacity, precisely when you need it most. An EPOA is designed to survive that loss and keep operating.

An EPOA can cover two distinct fields of decision-making, and you choose whether to grant one or both.

• Financial matters — operating bank accounts, paying bills and rates, dealing with the ATO, managing shares and investments, negotiating with Centrelink, dealing with your home including selling or leasing it, funding residential aged care, and running a business or an interest in one.
• Personal and health matters — where you live and with whom, the support and services you receive, and consent to or refusal of medical and dental treatment.
• Financial powers can begin whenever you nominate: immediately, on a specified date, on a stated event, or only when you lose capacity.
• Personal and health powers cannot begin until you lose capacity to make the decision in question. That is not a drafting choice; it is how the legislation works.

Capacity: the door that closes

To make an EPOA you must have capacity to make it — broadly, the ability to understand the nature and effect of what you are signing, to make the decision freely and voluntarily, and to communicate it.

Capacity is decision-specific and it is not all-or-nothing. Someone in the early stages of cognitive decline may well retain capacity to appoint an attorney. But capacity is a door that closes, and it does not reopen. Once it is gone, no EPOA can be made — by anyone, at any price. That single fact is why this document cannot be left on the 'one day' list.

Who can be your attorney, and how they act

An attorney must be at least 18 and must have capacity themselves. They must not be your paid carer or a health provider for you, and they must not be bankrupt or insolvent if they are to handle financial matters.

You can appoint more than one, and you decide how they act — jointly (all together), severally (any one alone), by majority, or in a structured combination. You can also appoint successive attorneys to step in if your first choice cannot act. That machinery is not decoration: getting it wrong is one of the most common reasons an EPOA fails at the moment it is needed.

Signing and witnessing

Queensland's approved forms and witnessing requirements are strict. An EPOA must be signed by you and formally accepted by each attorney, and it must be witnessed by an eligible witness — a justice of the peace, commissioner for declarations, notary public or lawyer. A witness cannot be an attorney under the document, a relative of you or of an attorney, or a paid carer or health provider for you.

An EPOA that is not properly witnessed is not merely untidy. Banks, land registries, aged care providers and hospitals reject defective documents, and they reject them at the worst possible time.

What happens if you don't have one

This is the assumption that costs families the most: being someone's spouse, their eldest child, or the family member who does all the caring gives you no legal authority to deal with their money. Banks will not let you operate the account. The Titles Office will not accept your signature on a transfer. An aged care provider cannot take your instructions on the accommodation agreement.

Where an adult has lost capacity and has no EPOA, an application must be made to the Queensland Civil and Administrative Tribunal for the appointment of a guardian (personal and health matters) or an administrator (financial matters) under the Guardianship and Administration Act 2000 (Qld). The practical consequences are consistent.

• Delay — the application must be prepared and filed with medical evidence of impaired capacity, notice must go to interested parties, and the matter waits to be listed and heard. Commonly weeks; where it is contested, months. Meanwhile the mortgage falls due, the bond is unpaid and the house cannot be sold.
• Cost — medical reports, legal costs, and in contested matters costs that exceed the price of an EPOA many times over.
• Loss of choice — the tribunal decides who is appointed. Where the family is divided, or no suitable person is available, it can appoint the Public Guardian or the Public Trustee of Queensland.
• Ongoing supervision — an administrator must generally file a management plan and account to the tribunal, and appointments are reviewed periodically.

The family cost people do not anticipate

The legal delay is measurable. The damage to the family often is not. A tribunal application forces a family to answer questions out loud that they have never discussed: who should be in control, whether one sibling has been managing Mum's money appropriately, whether the child who lives interstate should have a say, whether the family home should be sold at all. Positions harden. Affidavits are filed. Things are said in writing that cannot be unsaid.

In practice this is where estate disputes are born, long before anyone dies. Some of the most bitter litigation in this area starts as a disagreement about who should hold an appointment and finishes years later as a fight over an estate.

A properly prepared EPOA does not eliminate family conflict, but it removes the vacuum that conflict fills. Your choice, in writing, made while you could make it, is very hard to argue with.

Health decisions default to someone by law anyway

If you have no attorney for health matters, Queensland law supplies a statutory health attorney — broadly, the first available and culturally appropriate person from a list beginning with a spouse, then an adult carer, then a close adult relation or friend, and failing all of those, the Public Guardian.

So a decision-maker will be found. The question is whether it is the person you would have chosen, whether they know what you would want, and whether they have authority to deal with the financial side of the same problem. Usually the answer to at least one of those is no.

It protects you as much as it empowers others

An EPOA is not a blank cheque. Your attorney is bound by statutory duties and general principles: to act honestly and with reasonable diligence, to keep their property separate from yours, to keep records, to avoid conflict transactions unless authorised, and to support you in making your own decisions as far as you are able.

You can also build in your own limits — restricting powers to particular accounts or assets, requiring attorneys to act jointly so no one acts alone, requiring consultation with a named family member, prohibiting the sale of a specific asset, or recording your views about care and living arrangements.

Well drafted, an EPOA is a safeguard against financial elder abuse. Poorly drafted, or downloaded and guessed at, it can become a vehicle for it.

What an experienced estate planning solicitor is actually doing

Queensland's approved forms are publicly available, and nothing stops anyone from filling one in. The forms are the easy part. What they cannot do is tell you what to write in them.

• Assessing and recording capacity properly — asking the questions that test understanding rather than agreement, making a contemporaneous file note, and obtaining medical evidence first where capacity is borderline. That record is what defends the document years later.
• Screening for undue influence — seeing you alone, and satisfying ourselves the appointment reflects your wishes, not those of the person who drove you to the appointment.
• Getting the appointment structure right — who, how many, jointly or severally, in what order, with what substitutes. Two children appointed jointly must agree on everything: a protection if they are aligned, a stalemate if they are not.
• Drafting powers, limits and directions that hold up — wording specific enough to be effective and clear enough that a bank, hospital or land registry will accept it. Rejection at the counter is not appealable.
• Integrating it with the rest of your plan — your will, any advance health directive, superannuation and binding death benefit nomination, life insurance, family trusts or companies, business succession, and any granny flat or family loan arrangement.
• Anticipating conflict transactions before they arise — can your attorney sell the family home to fund aged care if a child lives in it, continue gifts to grandchildren, maintain a dependant, or transact with themselves? Some of these need express authorisation.
• Ensuring formal validity — the correct current form, proper signing, an eligible witness, and each attorney's acceptance obtained, with certified copies available for the institutions that demand them.
• Being there later — when your attorney rings to ask what they can and cannot do, whether they may pay themselves, and how to deal with a sibling who disagrees.
• Reviewing it when life changes — separation or divorce, the death or incapacity of an attorney, a falling-out, a move interstate, a new business, a serious diagnosis.

Practical steps

Measured against a contested QCAT application, or against a family that stops speaking, a properly drafted EPOA is one of the least expensive documents you will ever sign. It usually takes one appointment.

• Do it now, not when it is obviously needed. Capacity is the precondition, and every day of delay is a day the door might close.
• Have the conversation with your parents and grandparents: do you have an EPOA, does it cover both financial and personal/health matters, and are the people named still the right people?
• Choose your attorneys for judgment and integrity, not seniority. The eldest child is not automatically the right choice, and neither is the one who lives closest.
• Tell your attorneys they are appointed, and tell them what you want. An attorney who has never discussed your wishes is guessing.
• Consider an advance health directive as well, particularly if you have firm views about life-sustaining treatment.
• Store it where it can be found, and give your attorneys and your solicitor a copy.
• Review it every few years, and after every significant life change.

If capacity has already gone

If a parent or partner has already lost capacity, an EPOA is no longer available — but you are not without options. A tribunal application for guardianship or administration is the path, and how it is prepared makes a substantial difference to how quickly and calmly it resolves.

Good medical evidence, a sensible proposal about who should be appointed, and early engagement with other family members can be the difference between a straightforward appointment and a contested hearing that runs for months. Coastside Law can help with either — putting the documents in place while there is still time, or navigating the tribunal when there is not.

Enduring powers of attorney in Queensland — common questions