An Enduring Power of Attorney (EPOA) is an important legal document that allows you to choose, while you have capacity, who can make decisions on your behalf if you later lose the ability to make those decisions yourself. Without an EPOA in place, your family may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) for the appointment of a decision-maker, which is time-consuming and public.
This guide explains how an Enduring Power of Attorney works in Queensland, including the different types of authority available, how Attorneys are appointed, when an EPOA takes effect and how it can be revoked. This guide is intended as general information only. If you need advice about your specific circumstances, you should obtain legal advice.
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What is an Enduring Power of Attorney?
An Enduring Power of Attorney (often shortened to EPOA) is a legal document made under the Powers of Attorney Act 1998 (Qld). It allows you (the principal) to appoint one or more people (your Attorneys) to make decisions on your behalf if you lose capacity through illness, injury or another circumstance.
The key distinction between a General Power of Attorney and an Enduring Power of Attorney is that an Enduring Power of Attorney can continue to operate after capacity has been lost, subject to its terms and the requirements of Queensland law. This means an EPOA does not give your Attorney unrestricted power. They must act in line with the Act, the principles set out in it and any limits or directions you have included in the document itself. They must also keep accurate records of decisions made on your behalf.
Financial vs Personal (including health): the two types of decisions that can be made pursuant to an EPOA
A Queensland Enduring Power of Attorney can cover financial matters and personal matters (including health) within the same document, although different Attorneys can be appointed for different types of decisions where appropriate.
Financial Enduring Power of Attorney
A financial EPOA allows an Attorney to make decisions about financial and legal affairs, including managing bank accounts, paying bills, dealing with property, operating a business and signing documents.
A financial EPOA may commence immediately, on a specified date or event or only when capacity is lost, depending on the terms of the document set out by the Principal (the person making the document).
Personal (including health) Enduring Power of Attorney
A personal (including health) EPOA covers decisions about your day-to-day life and your medical care: where you live, what services you receive, who you have contact with and whether to consent to or refuse medical treatment. This part of anEPOA can only ever take effect once the Principal has lost capacity to make these types of decisions.
Personal (including health) Attorneys do not have power over your money or financial affairs. They make life and care decisions only. If you have very specific wishes about future medical treatment (such as life-sustaining measures, religious considerations or known conditions like dementia), an Advance Health Directive (AHD) sits alongside your EPOA and sets out those wishes in detail. Many people choose to prepare an AHD at the same time as their EPOA as part of a broader estate planning strategy.
How to appoint an Attorney in Queensland
There are three practical decisions to make before you sign an EPOA: who you appoint, how they make decisions together (if there is more than one), and what limits or directions you want to include.
Who can be appointed
An Attorney must be at least 18 years old, have full capacity themselves and not be your paid carer or health-care provider. Common choices are a spouse or partner, an adult child, a sibling or a trusted friend. You can appoint more than one Attorney and you can appoint different Attorneys for the financial side and the personal (including health) side if that suits your situation.
If you appoint more than one Attorney for the same type of matter, you must decide how decisions will be made. Attorneys can generally be appointed to act jointly, severally or by majority, depending on the options available under the approved form and the circumstances of the appointment. The structure chosen can affect how decisions are made in practice and should be considered carefully before the document is signed .
The approved Queensland forms
An EPOA in Queensland must be made on one of the approved forms published by the Queensland Government. There are two:
- Form 2 (Short Form) appoints one or more Attorneys for financial matters and personal (including health) matters together, with limited space for additional directions.
- Form 3 (Long Form) provides additional space for terms, conditions and directions, and may be suitable where more detailed instructions are required. The Form 3 also allows you to appoint a different attorney/s for the two types of decisions to be made, depending on who you trust to appoint in each of these capacities.
The form you sign must be witnessed by an eligible witness, such as an Australian-qualified solicitor, a notary public, a Commissioner for Declarations or a Justice of the Peace qualified to witness EPOAs. The witness must explain the document to you, be satisfied that you understand it and have capacity and complete the certificate at the end of the form.
What to include in the document itself
The EPOA itself can include directions, limits and conditions that bind your Attorney. Common inclusions are limits on selling the family home, a requirement to consult certain family members before major decisions, directions about how to handle a family trust or SMSF and gifting restrictions. Without these, your Attorney has wide discretion within the Act.
When does an Enduring Power of Attorney take effect?
The timing rules differ between the two types of matter.
- Financial matters: You choose. The financial side can take effect immediately on signing, on a specified date, or only when you lose capacity. The default position, if you do not specify, is that the financial side starts when you lose capacity.
- Personal (including health) matters: Only when you lose capacity. You cannot bring this part of the EPOA into effect while you still have the ability to make those decisions yourself.
Who decides whether you have lost capacity?
Capacity is decision-specific and time-specific. The Powers of Attorney Act 1998 (Qld) presumes you have capacity unless there is evidence otherwise. In practice, when an Attorney needs to start acting on the basis that you have lost capacity, they will usually rely on a medical assessment from your treating doctor. For larger decisions or where capacity is being challenged, a specialist (geriatrician, neurologist, psychiatrist) is often involved.
Capacity can also fluctuate. Someone with early-stage dementia, for example, may have capacity for some decisions and not others and may have good days and bad days. An EPOA does not need to be a one-way switch. Your Attorney must continue to involve you in decisions to the extent your capacity allows.
How to revoke or cancel an Enduring Power of Attorney
You can revoke (cancel) your Enduring Power of Attorney at any time while you have capacity. The most common reasons to revoke are a relationship breakdown with the appointed Attorney, the Attorney moving overseas, the Attorney losing capacity themselves, or simply wanting to update the appointment to reflect new family circumstances.
How a revocation works in practice
A revocation must be in writing. The Queensland Government publishes Form 6 (Revocation of Enduring Power of Attorney) for this purpose. The revocation must be signed by you and witnessed in the same way as the original EPOA. You then need to tell your Attorney that the document has been revoked, and ideally collect or destroy any copies of the original EPOA so it cannot be used.
It is best practice to also notify any banks, financial institutions, accountants and aged-care providers who hold a copy of the original EPOA, so they update their records and stop accepting instructions from the former Attorney.
Events that automatically affect or revoke an EPOA
Certain events may affect the operation of an Enduring Power of Attorney. Depending on the circumstances, this may include the death, resignation, loss of capacity or bankruptcy of an Attorney, orders made by QCAT or the creation of a later Enduring Power of Attorney dealing with the same matters.
Because the effect of these events depends on the specific circumstances and the terms of the document, legal advice should be obtained if there is uncertainty about whether an EPOA remains valid.
Common EPOA mistakes
Putting off making an EPOA until a health event forces a rushed decision. Capacity at the time of signing is essential and a rushed document signed under pressure is the one most likely to be challenged later.
- Appointing a single Attorney with no backup. If they cannot act, your family is back to applying to QCAT.
- Appointing multiple Attorneys jointly (so all must agree) without considering what happens if they disagree, live in different countries or have a falling-out.
- Using the Short Form (Form 2) for a complex situation that really needs the Long Form (Form 3) and detailed directions.
- Not pairing the EPOA with an Advance Health Directive when you have strong views about future medical treatment.
- Failing to tell anyone where the original document is stored. Some organisations may request to sight the original document before acting on it.
- Forgetting to update the EPOA after a separation, divorce, marriage or significant change in the appointed Attorney’s circumstances.
- Not obtaining proper legal advice before signing the EPOA. While the forms may seem straightforward, small mistakes or unclear instructions can create significant issues later. Legal advice can help ensure the document is tailored to your circumstances, accurately reflects your wishes, and avoids problems that may not become apparent until the Attorney is required to act.
Where an EPOA fits in your wider Estate Plan
An Enduring Power of Attorney operates while you are alive and unable to make relevant decisions for yourself. A Will deals with the distribution of your Estate after death. An Advance Health Directive can record your wishes regarding future medical treatment if capacity is lost.
Together, a Will, Enduring Power of Attorney and Advance Health Directive form the foundation of many estate plans. Each document serves a different purpose, helping ensure your affairs can be managed both during your lifetime and after your death.
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Enduring Power of Attorney frequently asked questions
Is an Enduring Power of Attorney the same as a Will?
No. A Will sets out how your assets will be distributed after your death and appoints an Executor to administer your estate. An Enduring Power of Attorney appoints a person to make certain decisions on your behalf while you are alive if you lose capacity. An appointment under an Enduring Power of Attorney ceases upon the Principal’s death and the Attorney’s authority to act under that document comes to an immediate end.
Do I need a lawyer to make an EPOA in Queensland?
No. Queensland provides approved forms that can be completed without engaging a lawyer. However, the document must comply with legislative requirements and be properly executed. Legal advice may assist where there are complex family, business, trust or estate planning considerations.
Can my Attorney make a Will for me?
No. Making or changing a Will is a personal decision that the Powers of Attorney Act 1998 (Qld) expressly excludes from an Attorney’s powers. Only the Supreme Court of Queensland can authorise a statutory Will for someone who has lost capacity.
Can I give my Attorney the power to make gifts on my behalf?
Yes, but the Act tightly limits the default position. Without specific authorisation in the EPOA, your Attorney can only make modest gifts that you would reasonably be expected to make (birthday and Christmas gifts, charitable donations of a kind you have made before). If you want your Attorney to be able to make larger gifts (for example, helping a child with a deposit, or doing estate planning work), the EPOA must say so explicitly.
Does my EPOA work in other states?
Australian states and territories have different EPOA rules, but a Queensland EPOA is generally recognised in other states for transactions that take place in Queensland. If you regularly conduct affairs in another state (you own property in New South Wales, for example), it can be worth preparing a separate EPOA under that state’s law to avoid practical issues.
How much does an EPOA cost?
Simple EPOAs are quoted as a fixed fee. Most of our clients prepare an EPOA as part of an Estate Planning package alongside a Will, an Advance Health Directive and (where relevant) trust and superannuation documents. We quote the full package in writing before any work begins so you know what to expect.
How often should I review my EPOA?
You should consider reviewing your Enduring Power of Attorney alongside any estate documents following significant life events such as marriage, separation, divorce, changes in family circumstances, changes to your assets, or changes affecting your appointed Attorney. Regular reviews can help ensure the document continues to reflect your wishes and circumstances.
What happens if I lose capacity without an EPOA in place?
If you lose capacity without an Enduring Power of Attorney, an application may need to be made to the Queensland Civil and Administrative Tribunal (QCAT) for the appointment of an Administrator and/or Guardian. QCAT will determine who should be appointed based on the circumstances of the case and the applicable legal principles.
Speak with a Wills and Estates lawyer in Brisbane Northside
If you are putting an estate plan in place, updating an existing EPOA, or supporting a family member who may need help with their affairs, book a fixed-fee initial consultation with a Kelly Lawyers Wills and Estates lawyer. We will listen, explain your options in plain English and outline costs in writing before any work begins.
Based in Ascot and serving the Brisbane Northside, our team has been preparing Wills, EPOAs and Advance Health Directives for North Brisbane families since 1984.
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