What is an enduring power of attorney?
An enduring power of attorney is a legal document that allows you to appoint someone you trust to make decisions for you during your life time, if you no longer have the capacity to do so. An enduring power of attorney usually takes effect when you lose capacity to manage your own affairs.
Losing capacity does not just happen to people who are ageing. It can happen at any time and it may be temporary or permanent. People can lose capacity for decision making due to intellectual or psychiatric disability, acquired brain injury, dementia or temporary illness.
Who should make an enduring power of attorney?
If you are over 18 and have capacity to understand the nature and the effect of the power you are giving, it’s important you plan for your future by making an enduring power of attorney.
What is an attorney?
An attorney is the person you name to manage your affairs in the event that you are unable to do so. You can have more than one attorney. Attorneys can be appointed to manage your financial matters and/or your personal and health matters.
You can specify when your attorney’s powers begin and what powers they will have. This is often referred to as the ‘limits of your attorney’s powers’.
What does an attorney for financial matters take care of?
A financial attorney can do things such as:
- pay your bills
- prepare your tax returns
- manage your investments.
What does an attorney for personal and health matters take care of?
An attorney for personal matters can make decisions about where you will live, who you will live with and your recreational activities. An attorney for health matters can make certain medical decisions, including which treatment options and medicines you should have.
(This is not the same as an advanced health directive, which is something you can make in consultation with your doctor. Find out more about advanced health directives.)
An attorney is accountable
An attorney is personally accountable for their actions.
If they mismanage your affairs, whether deliberately or by negligence, they can be held liable. This can include facing court or the Queensland Civil and Administrative Tribunal (QCAT) to recover money and may even lead to criminal charges.
The Public Guardian has powers to investigate complaints if an attorney (for financial, health or personal matters) is acting improperly.
There have been many cases of family or friends mismanaging their role as attorney. This can include selling a person’s assets and keeping the money for themselves or transferring ownership of assets.
When investigated, common responses are:
- ‘Mum wanted us to have the money.’
- ‘Dad doesn’t need the money and we do.’
- ‘The money is not doing them any good in the nursing home and we have a mortgage to pay.’
These types of reasons are generally not accepted by QCAT and may result in legal action to recoup money on behalf of the person with incapacity.
The Public Trustee as your attorney for financial matters
In cases where a person has already lost capacity, the Public Trustee may be appointed as their financial administrator by the Queensland Civil and Administrative Tribunal (QCAT).
Where the Public Trustee is appointed as attorney for financial matters, we are committed to protecting our customers’ rights, interests and opportunities to the greatest extent practicable, and ensuring we put our customers at the centre of everything we do.
Making an enduring power of attorney with the Public Trustee
We can help you to make your enduring power of attorney for a competitive fee. If you choose the Public Trustee to be your attorney, we will waive the preparation fee (fees apply once activated, see below).
Our preparation fees for enduring power of attorney are:
- $205.70 for an individual
- $313.25 for a couple.
Requirements for making an enduring power of attorney
To make an enduring power of attorney, you need to be able to:
- understand the nature and effect of a decision,
- freely and voluntarily make those decisions, and
- communicate the decisions in some way.
Witnessing your enduring power of attorney
An enduring power of attorney must be witnessed correctly. When we make an enduring power of attorney, we are able to witness it and supply you with a certified copy. Get in touch with us by phone on 1300 360 044 for more information or to make an appointment.
Fees for active enduring powers of attorney
Once your enduring power of attorney is active, fees apply for any services provided by the Public Trustee dependant on individual circumstances such as:
- personal financial administration
- asset management
- real estate property management
- incidental outlays
- additional services.
Combining Will and enduring power of attorney appointments
If you have a simple asset structure and or specifications, you may be able to make your Will at the same time as your Enduring Power of Attorney. Further information on making a Will, asset structures and specifications are available here.
- Learn more about important reforms to Queensland’s Guardianship Laws
- Store your EPA, Advance Health Directive and other documents - Queensland Government’s Office of Advance Care Planning - My Care, My Choices
- You decide who decides - Australian Guardianship and Administration Council
- Moneysmart - supporting older Australians
- Common misconceptions about enduring powers of attorney
- Stories about powers of attorney
Request an appointment to make your enduring power of attorney today.Request an appointment