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The Public Trustee of Queensland


Enduring Power of Attorney
If there comes a time when you are unable to manage your own affairs, it may be too late to make your wishes clear to those who will care for you. The best way to provide peace of mind is to legally appoint someone now to manage your financial and personal/health matters in case in the future, you are unable to do so yourself. You can do this by making an Enduring Power of Attorney.
 
What's the difference between a general and Enduring Power of Attorney?
A general power of attorney is a legal document that allows you to nominate one or more attorneys to act on your behalf. The attorney's power ceases if for any reason you lose the capacity to manage your own affairs. A general power of attorney is typically used in commercial transactions to give someone specific authority in financial matters. An attorney under a general power of attorney cannot make personal or health decisions. The Public Trustee can prepare a general power of attorney for you.
 
What is an Enduring Power of Attorney?
Unlike a general power of attorney, the powers under an Enduring Power of Attorney continue in the event you lose the capacity to make decisions for yourself. An Enduring Power of Attorney allows you to give your attorney the power to make financial decisions and also personal and/or health decisions. An Enduring Power of Attorney allows you to plan for the unexpected such as an accident or physical or other illness.

An Enduring Power of Attorney enables you to set out what actions your attorney/s can perform on your behalf. You can nominate one or more attorneys and say when their power will begin. You can give your attorney/s the authority to make any decision that you could legally make yourself or limit the attorney/s powers to terms set by you.

A financial attorney is responsible for all financial matters including receiving income, paying bills, taxation and contractual issues, investment and financial planning, legal actions or property management.

A personal/health care attorney may make decisions such as where you live, who you live with, daily issues like diet and dress and giving approval for you to receive certain types of health care.
Who should make an Enduring Power of Attorney?  
You should make an Enduring Power of Attorney if you are over the age of eighteen and have the capacity to understand the nature and effect of the power you are giving to your attorney.
 
What would happen if I didn't have an attorney to act for me?  
Depending on your individual circumstances, the problems could be far-reaching.
Financial matters may be dealt with on an informal basis however if formal authority is needed for any transaction, or if disagreements between family members arise, an application may need to be made to the Guardianship and Administration Tribunal for the appointment of an administrator. By making an Enduring Power of Attorney you get to choose who will administer your financial and/or personal affairs.
 
How do I make an Enduring Power of Attorney?  

The Public Trustee of Queensland makes Enduring Powers of Attorney by appointment through its fifteen offices statewide. We also attend regional courthouses in order to provide this service to people who live in more remote areas.

The benefits of making your Enduring Power of Attorney with The Public Trustee are:

  • our many years of experience equip us with the skills to meet the individual needs of our customers.

  • we can prepare the document in one appointment.
Who should I appoint as my attorney/s?

It is very important to choose people that you trust to act as attorney for you as decisions they make on your behalf are legally binding.

Any person chosen by you should be over eighteen years of age and not a paid carer (someone paid to take care of you. This includes a nurse or doctor). Someone who receives a carer's pension or similar government benefit is not considered a paid carer.

Financial Attorney
Appointing a financial attorney requires some thought as the person appointed will be entrusted to look after your financial security. This can be a demanding and time consuming role and it is important to make sure the attorney/s you appoint are experienced at handling financial matters.

The Public Trustee acts for many people who prefer to leave the financial and administrative work to experts. We will take into account your individual circumstances and requirements in order to best manage your day-to-day financial needs.

We will provide a detailed financial plan of management and keep accurate records to ensure that we are accountable for all transactions made on your behalf. Peace of mind is also gained from knowing that The Public Trustee of Queensland is government supervised and will always be there when needed.

Personal/Health Care Attorney
For personal and health care matters it is important to choose a close family member or friend who is aware of your personal and health care needs and wishes. If there is no one available, the Adult Guardian can be appointed to look after the interests of people with impaired capacity. The Adult Guardian is an independent statutory Officer.
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What power would my attorney/s have?  

Your financial attorney/s will be able to make any decisions that you can make for yourself unless you place specific limitations in your Enduring Power of Attorney.

The Public Trustee can advise you on any clauses you wish to place in your Enduring Power of Attorney and can ensure that your document is correctly prepared to avoid legal errors which may affect the use of the document at a later date.

 
What are my attorney's responsibilities?  

The duties of any attorney/s that you appoint include:

  • acting with honesty and care.
  • recognising your right to confidentiality and dignity.
  • taking into account your existing relationships, values and culture.
  • respecting your views and wishes.

For financial attorneys:

  • keeping records of dealings and transactions.
  • keeping your property separate from the attorney/s unless it is jointly-owned.
  • Avoiding conflict transactions. A conflict transaction is where there is a conflict between your interests and the interests of the attorney/s.

For personal/health attorneys:

  • taking into account the advice of your doctor or health care provider.
  • ensuring that any decision made for you contributes to your health and wellbeing.
  • choosing the least intrusive treatment when there is a choice.
 
What should I do if an attorney is not acting properly?  
Anyone who suspects that the Power of Attorney is not being exercised properly can inform the Adult Guardian. The Adult Guardian has the power to protect your interests if you are unable to do so yourself. Your Attorney may be required to provide accounts and details about any decisions that have been made. An Attorney who does not protect your interests adequately can be replaced.
 
When does the Enduring Power of Attorney begin?  

Financial Matters
You specify when you want the powers of your financial attorney to begin. This could be immediately, on a particular date or on a particular occasion such as if you lose capacity. The Public Trustee can help you clarify the clauses you will need to put in place for your particular situation.

If you do not specify a date or occasion for the document to take effect, your financial attorneys can act on your behalf immediately however during this time they must act only on your instructions.

Personal/Health Care Matters
Decisions about personal/health care matters will remain in your hands unless for some reason you lose the ability to make such decisions and to communicate them. Your attorney/s power does not begin until you are incapable of making those decisions for yourself and in fact may never begin. If there does come a time when you need the assistance of your attorney/s to make personal and health care decisions, they are still obliged to help you make decisions yourself to the fullest extent possible.
 
When does the Enduring Power of Attorney cease?   

There are a number of situations under which an Enduring Power of Attorney may cease to be effective. These include:

  • When you die.
  • When you revoke the document. This can be done at any time as long as you are capable of understanding what you are doing. If you do change or revoke the Enduring Power of Attorney you must inform your attorney/s. You will need to complete a form in order to officially revoke the document.
  • If you sign a later Enduring Power of Attorney.
  • If you marry, (unless there is a contrary intention expressed in the document or your new spouse is already your sole attorney for both personal/health care and financial matters).
  • If you divorce any powers given to your former spouse are revoked.
  • If your attorney resigns from their appointment. Your attorney may only resign while you have capacity and must give you signed notice. If you have lost capacity, your attorney would need to approach the Guardianship and Administration Tribunal for the appointment of an Administrator or the Supreme Court for leave to resign.
  • If your attorney becomes your paid carer or health-care provider the power is revoked so far as it relates to personal/health care matters.
  • If your attorney becomes a person with impaired capacity.
  • If your attorney becomes bankrupt or insolvent the power is revoked so far as it relates to financial matters.
  • If your attorney dies.
 
Advantages of Appointing The Public Trustee as your Financial Attorney  
The major advantages of appointing The Public Trustee as your financial attorney are:
  • The organisation will always be there for you. We will never get sick, die or go on holidays.
  • The Public Trustee is a professional trustee with over 85 years experience in acting as financial attorney.
  • The Public Trustee has professional staff to deliver services to you in all areas of financial management including investment, financial planning, taxation, property management, disability support and legal matters.
  • The Public Trustee is an impartial and permanent Government trustee.
  • The Public Trustee operates under strict safeguards and is Government supervised.
 
Do I have to register the Enduring Power of Attorney?  
No. You or your Attorney are only required to register the document with the Land Titles Office if your attorney signs a document on your behalf which is to be registered with the Land Titles office.
 
What should I do with the EPA once it is completed?  
Store the document in a safe place and provide your attorney/s with a copy.
 
What if I need more advice?  
If you need more advice on Enduring Powers of Attorney contact your nearest office of The Public Trustee or phone the Enduring Power of Attorney Information line on 1300 651 591.
 
Information on Advance Health Directives  
An Advanced Health Directive is a document which provides instructions about your choices for future health care and comes into effect only if you are unable to make your own decisions. If you wish to complete an Advance Health Directive, your doctor may be the most appropriate person to help you. It is also important that you discuss the Directive with your family and attorney for personal/health matters. For more information about the Advance Health Directive and Statutory Health Attorney contact the Office of the Adult Guardian.
 
Other services of The Public Trustee of Queensland
  • Administration of deceased estates
  • Establishment and management of trusts
  • Free Will-Making
  • Investment services and products
  • Disability Services
  • Property auctions and sales
  • Charitable bequests
  • Charitable trusts - The Queensland Community Foundation
  • Application for Probate for Private Executors

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