Have you ever wondered or worried what would happen if you were unable to make decisions for yourself?
Whether it's due to illness, injury, or simply being out of the country, there may come a time when someone else needs to step in and act on your behalf. That's where general or enduring power of attorney comes into play.
In Queensland, a power of attorney is a legal document that grants someone (the "attorney") the authority to make any decisions and take actions on behalf of another person (the "principal") provided that it is lawful to do such things.
It's an important tool that can provide peace of mind and ensure that your affairs are properly managed when you're unable to do so yourself.
How does it all work? In this article, we'll discuss this including the different types of powers of attorney that individuals can utilise depending on their specific needs and circumstances.
Table of Contents
The Legal Definition of Power of Attorney
A power of attorney is a legal document that grants someone or multiple people the authority to act on your behalf. This can be unrestricted, allowing the attorney to make decisions for financial and legal matters.
In Queensland, this document allows you to appoint another person as an attorney or agent so that they may make decisions for you when you are unable to do so yourself.
To create a valid power of attorney in QLD, it must meet certain requirements. While there are other means to make a power of attorney, it should usually be (and for Enduring Power of Attorneys, must be) in the approved form set down by the relevant legislation - the Powers of Attorney Act 1998 as at the date of this article.
The document must be in writing and signed by the principal (the person granting the power) while they have full mental capacity. It is also necessary for the document to be appropriately witnessed. It should also specify the powers granted and any limitations imposed. It is common for people to appoint an attorney for specific roles, on conditions or for a fixed time.
Having a power of attorney is important because it ensures that your affairs will be taken care of by someone you trust if you become unable to handle them yourself due to illness or other circumstances. Not all events can be planned for – an unexpected accident or change in circumstances may lead to temporary or permanent impairment or inability for you to make decisions or take actions for yourself. This is the reason why it is generally a good idea to at least have an Enduring Power of Attorney in place at tall times.
A power of attorney is a crucial legal tool that allows someone else to act on your behalf when needed. The documents are quite customisable but as they are a very powerful tool for delegating authority, it is important to ensure they are drafted correctly with consideration to scope and limitations based on your specific situation and needs.
General Power of Attorney
A general power of attorney (“GPA”) is a formal legal document agreement whereby one person (the ‘principal’) grants another person (the ‘attorney’) the power to make financial decisions on their behalf.
However, the document only remains operable if the principal still has capacity to make that decision for themselves. GPAs only relate to financial matters and are unable to extend to health or care related decisions.
A General Power of Attorney is often used when you are unable to handle these matters yourself due to illness, travel, or other circumstances. For example, if you go overseas but want to have someone look after certain things while you are away.
With a General Power of Attorney, the person you appoint as your attorney can manage tasks such as paying bills, managing investments, and handling real estate transactions.
This type of power of attorney is often valid for a specific period or until you revoke it.
It's worth noting that a General Power of Attorney becomes invalid if the principal (the person who granted the power) becomes mentally incapacitated. At this point, an Enduring Power of Attorney would come into effect.
Enduring Power of Attorney
The Enduring Power of Attorney (“EPA”) in Queensland, whether that be in Brisbane or further abroad, is a legal document that allows the attorney to make decisions on behalf of the principal however this type of power of attorney is unique because it continues to remain valid even if the grantor loses their mental capacity.
It also allows the attorney to the attorneys to make decisions about financial and personal matters for the principal while the principal has lost that capacity to make those decisions. It is largely because of these additional very wide powers that the Enduring Power of Attorney must be in the approved form set down by legislation, making correct drafting essential.
An Enduring Power of Attorney must be made while the grantor still possesses decision-making capacity. Once created and signed, so far as it relates to personal/health decisions it only takes effect when the grantor becomes incapacitated or unable to make decisions on their own. Financial decision-making power can be denoted to commence immediately, on a given date or some other condition.
With an Enduring Power of Attorney, individuals can plan for potential future incapacity and ensure that someone they trust has the authority to manage their financial and personal affairs when they are no longer able to do so themselves.
The attorney can handle tasks such as paying bills, managing investments, making medical decisions, or selling property. It is important to note that health care is a type of personal matter. Decisions about health matters relate a range of decisions including those relating to medical treatments, procedures and services to treat both physical and mental conditions.
Most commonly, decisions about health matters are about consenting to or refusing health care. For example, health decisions might include deciding whether or not to go to hospital, to have surgery, or to take medication.
When an adult is nearing the end of their life, health care also includes stopping treatments that are aimed at keeping the adult alive or delaying their death (life-sustaining treatments). The importance of appointing someone you trust and that knows you and your wishes becomes quickly evident when considering these types of decisions.
While an Enduring Power of Attorney grants significant powers and responsibilities to the chosen attorney, it does come with limitations. For example, attorneys must always act honestly and diligently with utmost care for the welfare and interests of the grantor.
Additionally, certain decisions may require approval from relevant government bodies or agencies before they can be implemented. Having an Enduring Power of Attorney ensures that your wishes are carried out even after you lose mental capacity – whether that be temporary or permanent.
It gives you control over who will make important decisions on your behalf when you cannot do so yourself. Consulting with estate planning lawyers knowledgeable in this area can help guide you through creating this essential document tailored specifically for your needs.
Advance Health Directive
An Advance Health Directive (AHD) is a legal document that allows you to specify your future medical treatment decisions if you become unable to make them yourself. It gives you control over your healthcare choices and ensures that they are respected even when you cannot communicate them directly. Your impairment may be due to an accident, dementia, a stroke, a mental illness or myriad of other circumstances.
The document allows you to communicate your wishes in advance so that they are known and to give health professionals directions about the treatment you want. For example, you can state your preferences regarding medication, surgery, resuscitation, and palliative care.
This comprehensive approach enables you to have a say in all aspects of your healthcare.
Having an AHD provides peace of mind knowing that your healthcare choices will be honoured in challenging times when clarity may be compromised. It's a powerful tool for maintaining autonomy and safeguarding against unwanted medical interventions.
Generally in Queensland, Advance Health Directives hold significant weight under the law. Healthcare providers are typically bound to respect the instructions outlined in these directives unless there are exceptional circumstances or conflicting laws.
One of the key features of an AHD is that it can also be used to appoint an attorney but limited to decisions about health care. This is similar to an Enduring Power of Attorney but cannot extend to making financial decisions. Similar to the other documents mentioned above, an Advance Health Directive must be made while you still have decision-making capacity.
Conclusion
Whether type of document you decide to make, it is important to choose someone you trust implicitly as your attorney because they will have your full legal authority to do certain things. In order to undertake their role in a financial capacity, they will often have full access to your finances and assets, so it's crucial that you know the person being appointed will act in your best interests at all times and follow any instructions outlined within the document.
An attorney is obliged to act in the best interests of the principal at all times – this is known as a fiduciary duty. It is important that you discuss with your attorney their appointment and the responsibilities that go with the role.
Understanding the different types of powers of attorney available in QLD can help you ensure that your affairs are properly managed if ever needed. Whether it's granting someone general decision-making authority or focusing specifically on healthcare choices through an Advance Health Directive – knowing which option suits your needs best is essential for peace-of-mind planning.
If you are considering creating a Power of Attorney in QLD, it is recommended to seek professional legal advice from a qualified wills solicitor who specializes in this area. They can guide you through the process and ensure that all necessary requirements are met according to Queensland law.
Whether you're planning for the future or navigating current circumstances, understanding these legal tools can empower you to protect your interests and secure your well-being.