A power of attorney (POA) is a formal document giving another person (called your attorney) the authority to make personal and/or financial decisions on your behalf. They are used for convenience in some cases but more often, in circumstances where you know that there may come a time you cannot make decisions for yourself.
A POA should be considered by everyone. We usually don’t think about it until it becomes obvious that the time is coming when we can’t make decisions for ourselves. But you never know what life holds for you, so you should get your affairs in order just in case. It really helps your loved ones to have these matters taken care of, while you still have the ability to make your wishes known.
What sorts of decision can my attorney make?
Personal decisions relate to your care and welfare, including your health care, (e.g. deciding where or with whom you live or consenting to medical treatment). Financial decisions relate to the management of your finances (e.g. paying your bills and taxes, selling or renting your home, using your income to pay for your needs or invest your money).
Types of Power of Attorney
There are 2 types of power of attorney, a general power of attorney and an enduring power of attorney.
You would use a general power of attorney to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you’re going overseas and need someone to sell your house or pay your bills.
It’s used while you can still make your own decisions and ends once you no longer can (i.e. you lose capacity). You are considered to have lost capacity to make a decision if you cannot:
• understand the nature and effect of the decision
• freely and voluntarily make the decision
• communicate the decision in some way
You would use an enduring power of attorney to appoint someone to make financial and/or personal decisions on your behalf.
For financial decisions, you can nominate whether you want the attorney to begin making financial decisions for you straight away or at some other date or occasion, such as once you’ve lost capacity to make these decisions.
Your attorney’s power to make personal decisions only commences when you lose capacity to make these decisions.
How to make an enduring power of attorney
To make an enduring power of attorney, you must understand the nature and effect of making an enduring power of attorney. Most importantly that once the power begins your attorney will have full control over the exercise of the power (subject to any terms limiting it)
In addition it is important to understand:
• the consequences and the extent of the power you are giving;
• that you may specify or limit the power, and when the power begins
• that you may revoke the enduring power of attorney at any time while you have capacity to do so
• that the power continues even if you lose capacity
• if you lose capacity you are effectively unable to oversee the use of the power.
When doubt arises over whether a person has the capacity to make an enduring power of attorney, the Queensland Civil and Administrative Tribunal (QCAT) can make a decision about that person’s decision-making capacity.
How do I make one?
You can complete an enduring power of attorney form yourself, online, or hard copies are available to purchase from many newsagents. However, you should get legal advice about it as it is a very important decision.
You should leave your original document in a safe place and keep a copy in a separate place. You should also leave a copy with anyone else who may be involved, such as the person who is your attorney but also perhaps your doctor, accountant, etc.
You do not need to register your completed document unless it is likely to be used in transactions related to buying or selling land. To register your document, take the original document to the Titles Registry and pay the fee
Who do I choose?
Find someone you trust who’d be willing to take on the responsibility. They must be over 18 and cannot be your paid carer, your health provider, or a service provider for a residential service where you are resident.
For personal matters, consider family members or a close friend who understands your personal wishes and health care needs.
For a financial attorney, consider someone who is responsible with their own money and understands financial matters. The person you appoint must not be bankrupt.
If you don’t have anyone to choose as your attorney, for personal decisions, you can apply to appoint the Public Guardian. For financial decisions, you can appoint the Public Trustee.
Be careful who you choose as your attorney. You’re potentially giving another person total control over your assets and the ability to make personal decisions about your health care and accommodation when you can’t do so yourself. Your attorney has a duty to act honestly and with care and regard to your circumstances and wishes.; and not be in a position of conflict. They must keep records and accounts of dealings and transactions, so it can be an onerous job.
When the POA ends
You may revoke an enduring power of attorney at any time while you have capacity to make this decision.
It also ends if:
• you die — If you die, your enduring power of attorney is revoked in its entirety.
• get married or enter into a defacto relationship— Unless your enduring power of attorney states otherwise, it is revoked if you get married or enter into a defacto relationship. However, if your defacto/husband/wife is already your attorney, your power of attorney is only revoked to the extent that it gives power to someone other than that person.
• get divorced — If you divorce, the power of attorney is revoked to the extent that it gives power to your former spouse.
• End your defacto relationship – the enduring POA is revoked to the extent that it gives power to your former partner.
It will also end if your attorney:
• becomes your paid carer or health-care provider
• becomes incapable themselves
• becomes bankrupt or insolvent (for a financial matters.)
What if your attorney does the wrong thing?
In rare cases, attorneys have spent assets unwisely or sold the family home inappropriately. In such cases, the Public Guardian has the power to investigate an attorney and has several options available to resolve the matter to best protect the adult concerned. Additionally, QCAT or the Supreme Court can remove an attorney or revoke an enduring power of attorney.
This is a different form, which you can complete yourself and with your doctor. It sets out your wishes in relation to medical issues, for a time when you cannot make, or communicate, those decisions such as not being resuscitated, or not being placed on life support, for example.