Power of Attorney
It is important that someone else can look after your affairs if you cannot do so (eg you are overseas, or you lack mental capacity) whether for a short time (eg you are ill), or permanently ( eg because you have dementia or you are in a coma). An Enduring Power of Attorney continues to be in force after you lose capacity and can provide the Attorney with wide or limited powers.
What does a power of attorney do?
A power of attorney is a legal document in which you can appoint someone to act on your behalf in your financial matters such as payment of bills or legal matters or in some cases your personal matters such as where you live and other day to day affairs or health matters.
When you appoint somebody you are called the donor or principal and the person appointed is called a donee or attorney. A power of attorney does not give the attorney the right to execute a will on behalf of the donor, or to vote on behalf of the donor.
What is a general power of attorney?
The general power of attorney is used for financial decisions but not for personal or health decisions. A power of attorney can be appointed for a specific purpose or for a specific period of time eg while overseas or for just the sale of a house or it can be unrestricted. A power of attorney can also be restricted by law (for example an attorney cannot act in certain investments which are governed by the Trusts Act).
The general power of attorney is revoked (cancelled) if:
- the donor loses the mental capacity to manage their own affairs, or
- it is cancelled (revoked) by the donor using a document called a deed of revocation, or
- the donor dies, or
- the attorney becomes bankrupt, or
- the attorney loses the mental capacity to act.
What is an enduring power of attorney?
Enduring powers of attorney can cover financial matters or personal matters including some health matters. The other difference is that under an enduring power of attorney, the attorney can continue to act even if the donor becomes mentally incapacitated.
An enduring power of attorney comes into effect on the date it is made for financial matters. In the case of personal matters, it comes into effect on the date of incapacity. If you want it to start on another date you need to specify that in the document.
The following events will end the enduring power of attorney:
- it is cancelled (revoked) by the donor, using a document called Revocation of an Enduring Power of Attorney, or
- the donor marries. The power of attorney is revoked unless the donor’s new spouse is also their attorney. If so, then the power of attorney is only revoked for any other attorney they might have.
- the donor divorces. The power of attorney is revoked to the extent it was given to their former spouse.
- the donor dies
- the donor makes a later document such as another power of attorney which is inconsistent with the first document
- the attorney withdraws by giving the donor a signed notice
- the Queensland Civil and Administrative Tribunal appoints a new attorney
- the attorney becomes the donor’s paid carer or health care provider
- the attorney becomes incapable ie of understanding their decisions and communicating the decisions
- the attorney becomes bankrupt or insolvent
- the attorney dies.
Who can be an attorney?
An attorney does not have to be your lawyer. They can be the Public Trustee, Adult Guardian, or a friend or relative provided they are:
- over 18 years of age and understand the nature of the document
- not bankrupt
- not a paid carer or health care provider (does not include a person in receipt of a Carers Pension).
If more than one attorney is appointed, then the document should specify whether the attorneys can act individually or must act together.
Who cannot make a power of attorney?
A person who has an incapacity, which means that they do not understand the nature of the legal document.
The Power of Attorney form?
Powers of attorney must be prepared in the approved form and executed in the presence of an appropriate witness.
A copy of a power of attorney or an enduring power of attorney may be required to be lodged with banks, financial facilities, Centrelink and similar organisations before allowing the attorney to act on behalf of the donor.
A power of attorney must be stamped and registered with Land Titles Office in the Department of Natural Resources if it is to be used for dealing with real estate.
I have been appointed an attorney in an enduring power of attorney for a person (“the principal”) who has lost capacity. Their original enduring power of attorney has been lost. What do I do?
Where possible, you should search your home and business as well as the principal’s home and business to see if you can recover a certified copy of the enduring power of attorney. This includes any safes and safe deposit boxes you may have access to.
Alternatively, you should inquire with the principal’s solicitor, accountant, bank, financial planner or stockbroker to see if they hold a certified copy of the enduring power of attorney in safe custody.
If you cannot recover a certified copy of the enduring power of attorney, and the person has lost capacity, you will need to apply to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as their attorney. Depending on the complexity of the matter, you may need legal advice.
What are the obligations of an attorney?
The attorney has an obligation to keep the donor’s property separate to theirs and should keep a written record of all dealings with the donor’s affairs. The attorney must act honestly and keep confidentiality.
An attorney takes on serious responsibilities. If they do not observe their responsibilities they may be removed or even convicted of an offence or required to pay compensation.
Anyone who suspects that the power of attorney is not being used properly can inform the Adult Guardian. The Adult Guardian has the power to protect the donor’s interests when the donor is unable to do so. They can require the attorney to provide accounts and details about any decisions that have been made.
An application can also be made to the Queensland Civil and Administrative Tribunal where an attorney is acting improperly. An attorney who does not protect the donor’s interests adequately can be removed.
Is a power of attorney valid interstate and is an interstate power of attorney valid in Queensland?
Powers of attorney are made under state laws and a power of attorney made in one state may not be accepted in another. You should seek legal advice in the state you want to use the Power of Attorney in.
If you have any questions or would like to speak with one of our solicitors, please contact us.