Enduring Power of Attorney Explained | Why It’s Important and How It Works

Written by Jordan Little

What is an Enduring Power of Attorney?

When planning for the future, most people only consider what will happen when they die and often forget to consider how their life will be impacted if they lose their ability to make decisions. An Enduring Power of Attorney under Queensland law is a document in which you can nominate individuals to step into your shoes and make decisions about your affairs. The individuals which you nominate are called your Attorneys. You can nominate your Attorney’s to make decisions about your financial matters and/or your personal matters.

Why is an Enduring Power of Attorney Important?

While most people go through life and never lose their decision making capacity, a loss of capacity can happen to anyone at any time. It is important to plan for the unknowns in life so that you and your loved ones can be prepared when unforeseen circumstances arise.

If you lose your decision making capacity, your whole life can come to a standstill. Having an Enduring Power of Attorney is important as you can nominate the people you trust to manage your affairs when you can’t, in line with future planning legal documents Australiaprinciples.

Even if you have capacity, you may need someone to make decisions and sign documents for you if you are unavailable. Perhaps you might be planning an overseas trip with limited reception, or a difference in time zones that will make it difficult for you to get things done at home.

Who Should I Appoint as my Attorney?

You can nominate anyone to be your Attorney provided they: 

1. have capacity to make decisions;

2. are 18 years or older;

3. are not your paid carer or have been your paid carer in the last three years;

4. are not your health provider;

5. are not a service provider for a residential service where you live; and

6. are not bankrupt or taking advantage of the laws of bankruptcy.

When selecting your Attorney, you should appoint people you trust to handle your affairs and who are suitable for personal and financial decision making authority law responsibilities. Most people appoint their spouse, children and/or family members as their Attorneys.

You can appoint as many Attorneys as you wish in your Enduring Power of Attorney however, only four Attorneys can act at once for each matter. Appointing multiple attorneys can be a benefit especially if one of your Attorneys is not able to act for you.

If you appoint multiple Attorneys to act at once, you need to specify how they must make decisions. You can specify your Attorneys are to make decisions: 

Jointly, meaning they must all agree on decisions;

• Severally, meaning any of your attorneys can make decisions without agreement;

• Majority, meaning the majority must agree; or

• In another way which you specify such as successive or alternative attorneys.

What Decisions can my Attorneys Make?

You can nominate your attorneys to make decisions for your personal matters and/or your financial matters.

Personal matters include things like where you live, who you live with, any support services you engage with, health care decisions, and any other matters which don’t relate directly to your financial or property matters.

Financial matters include all things related to managing your financial and property affairs. This includes, paying bills, managing investments, selling assets, managing businesses, and managing properties under a Financial Power of Attorney Australia structure.

You can nominate your Attorneys to act for personal and/or financial matters. You can also nominate particular Attorneys to only act for financial matters and particular Attorneys to only act for personal matters.

When will my Attorney Start Acting for me?

For personal matters, your Attorneys can only start acting when you have lost your capacity to make decisions about your personal matters , as defined under capacity to make decisions legal definition frameworks.

For financial matters, you can choose that your Attorney’s power begins: 

1. Immediately;

2. When you have lost your capacity to make financial decisions; or

3. At a certain time you specify, such as when you are on holiday or enter aged care.

Can I give Instructions to my Attorneys for how they are to make Decisions?

You can provide your Attorneys with instructions for how they are to act. You can specify things such as what assets you do or don't want sold, who lives with you, where you prefer to live, who your Attorneys must consult before making a decision, and any other matters you want to give instructions to your Attorneys about.

You can also instruct your Attorneys about who to notify when they begin acting as your Attorney such as yourself, your doctors, and family members. You can tell your Attorneys to provide certain information to the people they notify such as your financial records.

Important Disclaimer

The above information is general in nature and provided for educational and informational purposes only. It is not legal advice and should not be relied on as such. Every situation is different, and you should seek independent legal advice before making decisions about your own circumstances.