You will find introductory information about the forms needed to plan ahead in the Enduring Power of Attorney and Advance Health Directive sections of our website. There’s also information on the Queensland Government website.
You may initially wish to read our helpful factsheets under the heading 'Plan ahead'.
The information below answers specific questions about completing an Enduring Power of Attorney or Advance Health Directive.
Enduring Power of Attorney
When can my attorney start making decisions for me?
An Enduring Power of Attorney for personal and health care decisions comes into effect only if and when you become unable to make decisions and manage your affairs for yourself. This means that the person you have appointed can only start making decisions on your behalf when you are deemed to have lost the capacity to make your own decisions.
This may be obvious if you were involved in a serious accident or had a medical event such as a stroke. However, if you develop a condition such as dementia that affects your memory and decision-making abilities, your capacity to manage some or any of your affairs could fluctuate. In that case, you may need a medical evaluation to resolve what you can and can’t manage.
No one can make personal or health decisions for you as your attorney unless you have lost the ability to manage your own affairs.
However, when it comes to financial decisions you can choose when your attorney’s power begins. For example, you can select ‘immediately’ or you can nominate a time or occasion,such as once you’ve lost capacity to make these decisions. You can specify this in your own words on the form. (Note that if you don’t make a particular choice on the form, your attorney’s authority to act for you starts straight away.)
How is an Enduring Power of Attorney different from a will?
A will comes into effect only when you die. It’s a legal document that identifies who gets your money and property when you die (your ‘beneficiaries’), and names the person or organisation you choose to carry out your wishes (your ‘executor’).
An Enduring Power of Attorney is only effective while you’re alive. It’s a legal document that typically comes into effect if and when you can no longer make some or any decisions needed to manage your affairs.
How is a General Power of Attorney different to an Enduring Power of Attorney?
A General Power of Attorney is a legal form used to appoint someone to make only financial decisions on your behalf, typically for a specific period or event, such as if you are going overseas and need someone to sell your house or pay your bills. It is useful if you are capable of making your own decisions but are physically absent so cannot act for yourself. If you lose the capacity to make your own decisions, it’s no longer valid.
By contrast, the Enduring Power of Attorney can be used to nominate someone to make financial and/or personal and health care decisions on your behalf, and
Who is eligible to be an attorney?
- Must be at least 18 years old and have the capacity for the matter you are appointing them for.
- Cannot be:
- your paid carer, or have been your paid carer at any time in the previous three years (a person receiving a carer's pension is not considered a paid carer)
- your health provider (e.g. doctor, medical specialist, nurse)
- your service provider (e.g. paid support worker) for a residential service where you are a resident
- a bankrupt if being appointed as an attorney for financial matters.
- Despite the legal title, the role does not require your attorney to have any legal training.
Can the Public Guardian act as my nominated person?
The Public Guardian generally will not act in the role of nominated person due to the potential conflict with OPG’s investigations function. The OPG has powers to investigate inappropriate or inadequate decision-making arrangements related to adults with impaired capacity, including actions by an Attorney.
However you can request the Public Trustee of Queensland to act as your nominated person for financial matters. The Public Trustee is not able to act as a nominated person for personal or health matters. For further information on the Public Trustee’s Nominated Person service, please contact the Public Trustee on 1300 360 044 or visit the Public Trustee’s website.
Can I change my mind about my attorney? Can my attorney change their mind?
If you decide that you want to change your choice of attorney — or decide not to have an attorney after all — you can cancel your Enduring Power of Attorney document. You must complete a ‘revocation’ (cancellation) form and give copies to those involved, especially your previous attorney, doctor and bank. Note that you can only revoke an attorney while you have the capacity to make your own decisions.
Your attorney can withdraw or resign from being your attorney. There are some rules to follow, depending on whether you are still able to make decisions. If you are still independently making your own decisions at that time, the attorney can resign by notifying you in writing. If you don’t have the capacity to make your own decisions, the attorney needs to apply to the Queensland Civil and Administrative Tribunal (QCAT) to be removed from the role and QCAT will help decide who, if anyone, should take over.
What should I do with my completed forms?
It’s important to keep the original document in a safe place, and keep a certified copy for reference. You should give a certified copy to your attorney(s) and make sure they know where the original is kept. You should also give a certified copy to anyone else who might need to be involved in your future such as:
- family members
- your doctor
- your solicitor
- your accountant
- your financial adviser/stockbroker.
There is no central register for enduring documents and you don’t need to register your completed Enduring Power of Attorney for it to become legally effective. However, there is a situation involving property where you do need to register the form which is explained in the next question.
What happens if my attorney needs to make transactions involving my property?
If, at some time in the future, your attorney needs to use their power as your attorney for transactions related to buying or selling your land, they will need to lodge the original Enduring Power of Attorney with the Queensland Government Titles Office. They can do this by post or in person at a business centre. Lodgement will incur a fee.
As the person who drafted the Enduring Power of Attorney (the ‘principal’), you are not required to lodge the document with the Titles Office at the time you complete it.
What do I do with the completed revocation document? Is there a register?
When you have completed the revocation form, keep the original document in a safe place, and keep a certified copy for reference. You should give a certified copy to your former and current attorney(s) and make sure they know where the original is kept. You should also give a certified copy to anyone else who might need to be involved in your future such as:
- family members
- your doctor
- your solicitor
- your accountant
- your financial adviser/stockbroker.
You don’t need to register your completed revocation document unless it is likely to be used in transactions related to buying or selling land. To register your document, lodge the original with the Queensland Government Titles Registry. You can do this by post or in person at a business centre. Lodgement will incur a fee.
Can an interstate or overseas Enduring Power of Attorney be used in Queensland?
If an Enduring Power of Attorney is made in another Australian state or territory, or in New Zealand, it is generally recognised in Queensland and vice versa but only if the provisions made in the other state or territory or in New Zealand could have been made in Queensland.
An Enduring Power of Attorney made overseas (other than New Zealand) is not recognised in Queensland.
What if I live in another state and want to complete a new Enduring Power of Attorney form and I still have capacity?
While states and territories generally recognise an Enduring Power of Attorney made in another state or territory, the laws in each state that govern use of enduring documents vary in name and detail. For this reason it is wise to complete an enduring document in the state where you reside and where you might expect it to be needed in the future.
What if I think my attorney is not acting properly?
There are safeguards to protect you in the event your attorney is not acting lawfully and or in line with their role and responsibilities. Safeguards may include seeking legal advice, requesting a change of attorney through QCAT, or requesting that the Office of the Public Guardian begin an investigation. Options are outlined in some detail on our investigations pages.
What if I need an interpreter or translator?
You can complete an Enduring Power of Attorney or Advance Health Directive using a qualified interpreter/translator to read the form and guide you in your own language. The interpreter must be a qualified interpreter/translator and registered with the National Accreditation Authority for Translators and Interpreters. When you are completing the Enduring Power of Attorney or Advance Health Directive, the translator must also complete and sign a Statement of Interpreter/Translator.
The statement must be added to the original document and witnessed by the same person who witnessed the signing of the original document.
Who can witness a Power of Attorney?
An eligible witness is a person who is:
- a justice of the peace, a commissioner for declarations, a notary public, or a lawyer
- not a person signing the document for the principal (in the case where the principal has a physical disability which prevents them from signing the form themselves)
- not an attorney of the principal
- not a relation of the principal or a relation of the attorney of the principal
- not a paid carer or health provider of the principal if a document gives power for a personal matter.
A witness must sign at the time you sign the document; they must literally see you sign the document and they’re also required to check that you fully understand the meaning of appointing an attorney under an Enduring Power of Attorney.
What’s the difference between the short and long Enduring Power of Attorney forms?
There are two versions of the Enduring Power of Attorney: one for if you want the same person to act for you about your personal and health care AND for your finances in the future; and one for if you want to appoint different people to make decisions about personal and health care and finances.
The Enduring Power of Attorney – Short Form (Form 2) is used if you wish to appoint the same attorney/s for both financial and personal matters (including health care).
The Enduring Power of Attorney – Long Form (Form 3) is used if you wish to appoint different attorneys for personal matters (including health care) and financial matters. To appoint the Public Guardian for personal and health care matters, you must complete a Long Form; the Public Guardian does not make financial or property-related decisions.
Is it ok for the attorneys to sign the form before the person doing the Enduring Power of Attorney signs?
No, the person completing the form (the principal) needs to sign their Enduring Power of Attorney document first. The attorney(s) then signs afterwards to accept their appointment.
The witness must see the principal signing the actual form but there is no requirement for the attorney’s signature to be witnessed.
If I appoint more than one attorney, how do they make decisions on my behalf?
The options are very flexible and you can use your Enduring Power of Attorney to describe how various attorneys are to work together or alone to make decisions under different circumstances.
For example, a person can nominate that two or more attorneys decide:
- severally - any one of them may decide on their own
- jointly - all must agree
- as a majority - if you are appointing more than three attorneys, you would need to specify e.g. ‘simple majority’, ‘two-thirds majority’)
- other - meaning that the form allows you to describe how the various attorneys decide. (The Powers of Attorney Act 1998 allows you to appoint successive attorney/s for a matter so the power is given to a particular attorney only when power to a previous attorney ends. You can nominate the circumstances when a power will end (e.g. ‘if X dies, then Y may act’).