What is an Enduring Power of Attorney?

Home > Information Sheets > What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) in Queensland is a legal document that allows you to appoint someone to make decisions on your behalf if you lose the capacity to do so. Unlike a general power of attorney, which becomes invalid if you lose capacity, an EPA continues to be effective.

There are two types of decisions your appointed attorney can make:

Personal/Health Decisions: This includes choices about where you live, your health care, and other personal matters.
Financial Decisions: This involves managing your finances, such as paying bills, handling bank accounts, and dealing with property.

You can choose to appoint the same person for both types of decisions or different people for each. The EPA provides peace of mind, ensuring that your affairs are managed according to your wishes, even if you are no longer able to make those decisions yourself.

Selecting an attorney for your EPA

What factors should you consider when deciding who should be your attorney?

When selecting a person to be your Enduring Power of Attorney (EPA) in Queensland, it’s crucial to consider several key factors to ensure that your best interests are protected:

Trustworthiness: The person you choose will have significant control over your personal, financial, or health-related decisions. It’s vital that you trust them implicitly to act in your best interests.
Understanding of Your Wishes: Your attorney should have a clear understanding of your values, preferences, and wishes. This ensures that the decisions they make align with what you would want, especially in complex or sensitive situations.
Financial Acumen: If the EPA covers financial decisions, consider selecting someone with a good understanding of financial matters. They should be capable of managing money, paying bills, and making informed decisions about investments or property.
Availability and Willingness: The person you appoint should be readily available and willing to take on the responsibility. They must be prepared to dedicate the necessary time and effort to fulfill their duties effectively.
Ability to Handle Pressure: Acting as an attorney can be challenging, especially during times of crisis. The person you choose should be able to handle stress and make decisions under pressure.
Legal Eligibility: In Queensland, the person you appoint must be over 18 years old, not bankrupt, and capable of managing their own affairs. It’s also advisable to choose someone who lives locally or within the country to ensure they can effectively manage your affairs.
Relationship Dynamics: Consider how your chosen attorney interacts with other family members and potential conflicts that may arise. It’s important that they can communicate effectively and navigate any disputes that may occur.

By carefully considering these factors, you can appoint someone who will responsibly manage your affairs if you are no longer able to do so. Consulting with a legal professional can also help you make an informed decision.

Attorneys decision making with the EPA – what it looks like

What decisions can an attorney make under an EPA?

In Queensland, an Enduring Power of Attorney (EPA) allows the appointed person (the attorney) to make a wide range of decisions on behalf of the principal (the person who created the EPA) if they lose the capacity to do so themselves. The types of decisions an attorney can make generally fall into two categories:

1. Personal/Health Decisions

Living Arrangements: Deciding where you should live, such as whether you should move into a nursing home or continue living at home with care.

Health Care: Making decisions about your medical treatment, surgeries, medications, and other health care needs.

Lifestyle Choices: Decisions about your daily personal matters, such as what you eat, how you dress, and other aspects of your daily life.

End-of-Life Decisions: If specified in the EPA, the attorney may make decisions about life-sustaining treatment, but only within the legal framework and according to any advance health directives you have in place.

2. Financial Decisions

Managing Bank Accounts: Operating your bank accounts, including depositing and withdrawing money, paying bills, and managing investments.

Property Management: Buying, selling, leasing, or managing real estate or other property you own.

Paying Debts: Handling your debts and ensuring that bills are paid on time.

Investments: Managing your investments, including buying or selling shares, bonds, or other financial assets.

Handling Taxes: Preparing and filing your tax returns, and dealing with the Australian Taxation Office (ATO) on your behalf.

Superannuation: Managing your superannuation funds, though this may have specific requirements depending on the superannuation provider.

Customization of Powers

You can tailor the EPA to your needs by specifying exactly what decisions your attorney can make and under what circumstances. For example, you might allow your attorney to handle financial matters but not personal health decisions, or you might specify that certain decisions can only be made if a particular condition is met.

What are the key decisions a power of attorney cannot make using the EPA?

In Queensland, while an Enduring Power of Attorney (EPA) grants significant authority to the appointed person, there are certain decisions they are not legally permitted to make. These include:

Making a Will: An attorney cannot create or alter a will on your behalf. Only you, as the principal, can make decisions about your will, and those decisions cannot be delegated to someone else.
Voting: Your attorney cannot vote in elections or referendums on your behalf. Voting is a personal right and cannot be transferred to another individual.
Director duties: Your power of attorney cannot exercise your rights as a director of a company.
Marriage and Divorce: Decisions related to getting married, divorced, or entering into a civil partnership cannot be made by your attorney. These are deeply personal decisions that only you can make.
Consenting to Adoption: Your attorney cannot consent to your adoption or the adoption of your children. Adoption is a significant legal and personal decision that cannot be delegated.
Making Medical Research Decisions: The attorney cannot consent to your participation in medical research or experimental treatments unless specifically authorized under the law and provided in your EPA.
Withholding or Withdrawing Life-Sustaining Treatment: While an attorney can make many health-related decisions, they generally cannot withhold or withdraw life-sustaining treatment unless specific conditions are met, such as when it aligns with an advance health directive or is consistent with your known wishes.
Unlawful Acts: The attorney cannot make decisions or take actions that are illegal, even if they believe it’s in your best interest. All decisions must comply with the law.

What happens if an attorney does the wrong thing while using the EPA?

If an attorney appointed under an Enduring Power of Attorney (EPA) in Queensland does the wrong thing or acts inappropriately, there are several steps that can be taken to address the situation:

1. Revoking the Power of Attorney

If you still have the mental capacity to do so, you can revoke the EPA at any time. This means the attorney’s authority to act on your behalf is immediately terminated. You should notify the attorney in writing and ensure that relevant institutions (like banks) are informed of the revocation.

2. Mediation or Negotiation

If there is a dispute or concern about the attorney’s actions, mediation or negotiation may be a first step to resolving the issue without escalating it to a formal complaint or legal action. This can involve discussing the matter with the attorney directly or through a neutral third party.

3. Seeking Help from the Queensland Civil and Administrative Tribunal (QCAT)

If you, a concerned party, or an interested person believes the attorney is not acting in your best interests, an application can be made to QCAT to review the attorney’s actions. QCAT has the power to investigate the situation and can make various orders, including:
- Suspending or removing the attorney.
- Appointing a new attorney or guardian.
- Requiring the attorney to account for their actions or repay any misused funds.

4. Civil Litigation

If the attorney’s actions have caused financial loss or damage, you or your estate may be able to pursue civil litigation to recover those losses. This would involve taking the attorney to court and proving that their actions were improper or illegal.

5. Criminal Charges

If the attorney’s actions are found to be fraudulent or criminal (such as theft, fraud, or abuse), they could face criminal charges. This would involve reporting the matter to the police, who could then investigate and, if appropriate, prosecute the attorney.

6. Reporting to the Office of the Public Guardian

The Office of the Public Guardian in Queensland has a role in protecting adults with impaired decision-making capacity. Concerns about an attorney’s conduct can be reported to this office, which has the power to investigate and take appropriate action, including applying to QCAT for the attorney’s removal.

Safeguards to Prevent Misconduct

Preventing misconduct by an attorney appointed under an Enduring Power of Attorney (EPA) in Queensland is crucial to protecting your interests. There are several safeguards you can implement when setting up an EPA to reduce the risk of misuse or abuse of power:

1. Appointing Multiple Attorneys

Joint Attorneys: You can appoint two or more attorneys to act jointly, meaning they must make all decisions together. This ensures that no single attorney can make decisions without the agreement of the others, providing a system of checks and balances.
Joint and Several Attorneys: In this arrangement, each attorney can act independently of the others or together. This provides flexibility, allowing decisions to be made even if one attorney is unavailable, while still having multiple people involved in oversight.
Successive Attorneys: You can appoint a primary attorney and a successor who only steps in if the primary attorney can no longer fulfill their role. This ensures continuity in decision-making while providing an additional layer of protection.

2. Clearly Defining the Scope of Powers

Specific Instructions: Clearly outline what your attorney can and cannot do. For example, you might limit their ability to sell property, make large financial transactions, or specify that they can only act in certain situations (such as after a medical certification of your incapacity).
Restricted Powers: You can specify in the EPA that certain decisions require the consent of multiple attorneys or that they must seek advice from a financial advisor or legal professional before acting.
Time-Limited Powers: You can set time limits on the powers, such as restricting certain decisions to a particular period or until a specific event occurs.

3. Regular Monitoring and Accountability

Appointing an Overseer: You can appoint a trusted individual (such as a family member, friend, or professional) to monitor the attorney’s actions. This person can be given access to financial records or require the attorney to report on their decisions regularly.
Regular Audits: Specify in the EPA that the attorney’s financial transactions must be audited periodically by a qualified accountant or financial advisor. This provides ongoing scrutiny and can detect any irregularities early.
Bank Notifications: Arrange with your bank to be notified of significant transactions made by the attorney, or require dual authorization for large withdrawals or transfers.

4. Professional Attorneys

Appointing a Professional Attorney: If you lack someone in your personal life whom you trust fully, you might consider appointing a professional, such as a solicitor or a trustee company, to act as your attorney. Professionals are legally bound by ethical standards and are typically more knowledgeable about managing legal and financial matters.
Professional Supervision: Even if you appoint a non-professional attorney, you can require that they seek regular advice from a lawyer, financial advisor, or accountant when making complex decisions.

5. Advance Health Directives and Specific Wishes

Advance Health Directives: Create an Advance Health Directive to specify your medical treatment preferences. This reduces the attorney’s discretion in making health-related decisions and ensures that your wishes are followed.
Detailed EPA Documentation: The more detailed and specific you are in the EPA about your wishes, the less room there is for the attorney to act contrary to your intentions. Clearly document your values, preferences, and any particular decisions you want to be made in specific circumstances.

6. Legal Advice and Education

Consulting a Legal Professional: When drafting your EPA, it’s crucial to seek legal advice to ensure that all necessary safeguards are in place and that the document is legally sound. A solicitor can help you understand the implications of the powers you’re granting and how best to protect yourself.
Educating Your Attorney: Ensure that your attorney fully understands their responsibilities, legal obligations, and the consequences of misconduct. This can involve a formal briefing with a solicitor or providing written guidelines.

7. Including a Revocation Clause

Conditional Revocation: You can include a clause in the EPA that allows for automatic revocation under certain conditions, such as if the attorney is found to be acting improperly or if certain red flags are identified.

8. Court and Tribunal Oversight

Queensland Civil and Administrative Tribunal (QCAT): Include a provision in your EPA that allows concerned parties to apply to QCAT for review or oversight of the attorney’s actions if there are concerns about misconduct.

By implementing these safeguards, you can significantly reduce the risk of your attorney misusing their power and ensure that your interests are protected according to your wishes. Regularly reviewing your EPA and keeping communication open with your appointed attorneys and any overseers also helps maintain transparency and trust.

Seek legal advice

It’s important to seek legal advice when creating an EPA to ensure it’s correctly executed and reflects your intentions. The above is general guidance only and is not legal advice. You should contact our office for a consultation and seek advice about your options should you have any questions.