What happens if I don’t have an enduring power of attorney?
If you don’t have an enduring power of attorney, it could cause problems for your family if your decision-making ability becomes impaired.
For example, no one may be able to access your bank accounts to pay your bills, family conflict may arise when deciding who makes decisions about personal/health matters for you and there may be delays if there is a need to formally appoint someone to make decisions for you.
If someone needs to make decisions for you, and there is no enduring power of attorney, then the Queensland Civil and Administrative Tribunal (QCAT) may become involved to hold a hearing to have someone appointed. This decision will be made by QCAT rather than you.
What is an attorney?
An attorney is the person you name in an enduring power of attorney to make decisions for you or act for you when you are unable to. You can have more than one attorney. Attorneys can be appointed to manage your financial matters and/or your personal and health matters.
Can I have more than one person as my attorney?
Yes, you can have more than one attorney in place. If you do have more than one attorney, you must decide whether you want them to act jointly (all must agree) or whether they can act independently (severally—act without other attorneys agreeing) or by majority (majority agree).
What is a nominated person?
In your enduring power of attorney document, you can direct your attorney to provide information to one or more people about your financial or personal matters. You might choose to do this if you want other family members to have the information but not ‘power’ to take actions, for example. The people you nominate to receive this information are called your nominated persons. Read this guide for more information about nominated persons [PDF 0.50 MB].
Can I change my mind or cancel my enduring power of attorney?
Yes, it can be changed or cancelled if you still have capacity to make this decision.
You should consider whether you need to update or change your enduring power of attorney if your relationship status changes such as divorce, marriage or ending of a de facto relationship.
Can my attorney continue to act if I pass away?
No, your attorney cannot continue to act under the enduring power of attorney as the enduring power of attorney is cancelled when you pass away.
What if my chosen attorney lives overseas?
Where your attorney lives is an important consideration when choosing an attorney. Someone living overseas may have a lot of trouble trying to support you with financial matters or make health decisions for you, especially when they cannot be with you.
When can my attorney start to make decisions and act under the enduring power of attorney?
You can decide when you want your attorney for financial matters to start acting in the enduring power of attorney. For example, you could say that you want your attorney for financial matters to be able to act immediately or you could say that you want your attorney to start acting after you lose the capacity to make decisions for yourself.
Your attorney for personal/health matters cannot start making health or personal decisions until you lose the capacity to make those decisions yourself.
Who can witness an enduring power of attorney?
Only certain people can witness an enduring power of attorney. They must be either a justice of the peace, a commissioner for declarations, a lawyer or a notary public.
Does the enduring power of attorney need to be registered?
There is currently no central registry for enduring powers of attorney. Your attorney may need to register the enduring power of attorney with Titles Queensland if they need to deal with any property you own.
You can send a copy of your enduring power of attorney to the Statewide Office of Advance Care Planning for upload to your Queensland Health electronic hospital record, to allow easy access by authorised clinicians.
What should I do with the original enduring power of attorney?
This is a very important document that you should keep in a safe place. It would be important that your attorney(s) knows where it is, and you may give your doctor a copy of it as well.
Queensland Public Trustee provides a free safe custody service, and you can lodge the original enduring power of attorney with us.
Is an enduring power of attorney the same as an advance health directive?
No, an enduring power of attorney appoints someone else to make decisions on your behalf, whereas an advance health directive sets out your wishes directly to your medical treatment providers should you be unable to communicate what your wishes for medical treatment are.
Find out more about the Advance health directive.
What happens if my attorney mismanages my money?
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.
How can I ensure that my attorney is accountable for their actions?
By law, your attorney must act honestly and with reasonable diligence to protect your interests. You may consider a nominated person in your enduring power of attorney so your attorney must provide information to this person.
Does my attorney need to consult with people who are my supports including my close family members?
Attorneys need to apply a set of general principles which are found in the Powers of Attorney Act 1998. According to these principles, attorneys should consult with your support network, which will most likely include close family members.
You may consider adding a clause in your enduring power of attorney which requires your attorney to consult with people you name.
Is a Will and an enduring power of attorney the same thing?
No, they are two different things.
Is an attorney the same as a lawyer?
In Queensland, an attorney is not a lawyer—the attorney is your principal decision-maker in your enduring power of attorney.
I have an executor, isn't that the same as an attorney?
No, an executor is the person who you name in your Will to distribute your estate after your die. Your attorney is the person you nominate in your enduring power of attorney and makes decisions for you while you are alive. Your attorney cannot act after you pass away.
If I lose capacity, can my spouse automatically take care of things so that I don't need an enduring power of attorney?
Your spouse may be able to support you with financial and personal/health matters, but there may be some things your spouse may not be able to do. For example, in most circumstances, they may not be able to deal with assets you own solely or accounts that are in your name only.
A lot of people will nominate their spouse as their attorney under an enduring power of attorney so they can act for them to avoid any issues, problems or additional stress for them.
Can I just get a form and do my enduring power of attorney myself?
Yes, you can. Find more information and resources about Power of attorney. You may consider having a professional to help you to make sure it has the correct clauses in place to reflect your wishes should you become unable to make decisions and to ensure it is correctly witnessed.
Will QCAT automatically appoint QPT?
If I don’t have an enduring power of attorney and I lose capacity, will the Queensland Civil and Administrative Tribunal (QCAT) automatically appoint Queensland Public Trustee to manage my affairs?
No, Queensland Public Trustee is not automatically appointed by QCAT. QCAT decides who will manage your financial affairs—it may be Queensland Public Trustee, or it could be someone close to you.