Get an EPOA from expert Gold Coast Wills and estates lawyers.
When the unexpected happens, you need to have the right protections in place.
An enduring power of attorney (EPOA) means giving someone you trust the ability to make decisions that need to be made.
Those decisions can shape your financial and physical health – so having a properly drafted EPOA is essential.
At Bell Legal, we know how to draft EPOAs that put your interests first. Even if something happens to you, a correctly prepared EPOA means you’ll still be looked after.
Life can be unpredictable.
Make sure you’re protected with an EPOA.
What is an enduring power of attorney?
An enduring power of attorney (EPOA) is a legal document that gives someone the power to make financial and/or personal/health decisions on your behalf. It is a separate legal document from your Will. The ‘enduring’ part of an EPOA means that it continues to have effect even if you lose the mental capacity to make your own decisions.
Under an EPOA you can appoint a particular person to make financial decisions for you, and a different person to make personal and health decisions for you. Or you can appoint the same person to make both kinds of decisions for you.
You can also appoint more than one attorney and then choose how they make decisions. For example, you can appoint two people and state that they must agree on all decisions, or you can appoint one person to make decisions with another person to only make decisions if the first person is not able to.
You can also choose when a person’s ability to make decisions for financial matters comes into effect under your EPOA. However, the power to make decisions for personal and health matters will only come into effect if you do not have capacity to make those decisions yourself.
Why do I need a lawyer to prepare an enduring power of attorney?
Although it’s possible to fill out and lodge an enduring power of attorney form yourself, you should consult a Wills and Estates lawyer before doing so. Making someone your attorney grants them considerable powers, and it’s critical that you understand the legal, financial and personal decisions an attorney can make for you.
A good Wills and Estates lawyer can walk you through the implications of making a certain person your attorney, as well as help establish safeguards that protect both you and your attorney.
What if I don’t have an enduring power of attorney in place?
It is a fact of life that you may not always be able to make decisions when you need to. You may be too ill to make choices about your medical treatment or you could suffer a disability that prevents you from communicating your wishes to others. An EPOA provides peace of mind that the person of your choice will be able to make decisions on your behalf if you are unable to do so.
If you do not have an EPOA in place, it may become necessary for the Public Trustee to step in to manage your financial affairs. Health decisions may be made by your statutory health attorney (who could be a spouse, carer, close friend, or relative).
Alternatively, a person associated with you (such as a spouse, close friend, or relative) can apply to the Queensland Civil and Administration Tribunal (QCAT) to be appointed to make certain decisions for you, however, this can be complex and time-consuming at a time that may already be stressful for your loved ones. For further information about this process, please see Adult Guardianship, Incapacity and Dementia.
Responsibilities of an Attorney
If someone (known as a principal) has appointed you as their attorney, you have a legal obligation to carry out your designated responsibilities.
You also have a legal duty and obligation to act in the best interests of the principal – they’ve put their trust in you by handing over control of their financial and/or personal/health matters, and it’s up to you to do the right thing.
To properly fulfil your responsibilities, you need to carefully read the enduring power of attorney document, and understand:
- what type of decisions you can make (financial, personal/health, or both);
- when you can start making decisions;
- whether the person has appointed other attorneys; and
- whether the person has any special instructions you need to respect.
The most important responsibility you have is making sure that all decisions you make are for the benefit of the principal.
You also need to:
- follow the General and Health Care Principles;
- keep the person informed about the decisions you make; and
- avoid conflict transactions (decisions that benefit you, your family, or your friends).
Keep in mind that failing to fulfil your responsibilities as an attorney could result investigation and action by the Public Guardian. Serious failures can result in criminal liability.
How can you plan for the future?
Bell Legal Group can provide advice about preparation of an enduring power of attorney to ensure that the people you trust to manage your financial and personal affairs are appointed.
If you need help putting an enduring power of attorney in place, please contact our experienced team at Bell Legal Group by calling us on 07 5597 3366, sending an email to law@belllegal.com.au, or filling out our contact form.
Enduring Power of Attorney FAQs
How do I get an enduring power of attorney in Queensland?
To appoint someone as your attorney under an enduring power of attorney, you need to fill out the appropriate EPOA form, sign the form in the presence of a qualified witness (who will also need to sign it), and then have your attorney sign the acceptance.
If your attorney’s powers require that they deal with land, you’ll need to register your EPOA with the Queensland Titles Registry.
What is the difference between a general power of attorney and an enduring power of attorney?
A general power of attorney authorises the attorney to make decisions about the principal’s assets (such as property, shares, or bank accounts) for a specific period of time or for a specific event (for example, appointing an attorney to deal with the sale of your house). These are often used if the principal is unavailable or temporarily unable to make financial decisions (for example, if you are overseas on holiday). A general power of attorney ceases if the principal dies or loses mental capacity, and doesn’t give the attorney the right to make personal/health decisions for the principal.
An enduring power of attorney, on the other hand, does continue if the principal loses mental capacity.
An enduring power of attorney can give the attorney the right to make financial decisions, health/personal decisions, or both financial and health/personal decisions whereas a general power of attorney is limited to financial decisions.
How much does an EPOA cost in Queensland?
The standard EPOA form lacks specialised terms that can be essential if you have a spouse or more complicated financial affairs (for example superannuation, or an interest in a company or a trust). Engaging a lawyer to help you prepare an effective EPOA, will ensure that your interests are protected. To receive an estimate on your matter, get in touch with us.
What type of lawyer does POAs?
A Gold Coast enduring power of attorney lawyer can help you make a general POA or an EPOA. If you need advice about making an enduring power of attorney, contact one of our expert Wills and Estates lawyers to book an appointment.
Who can witness an enduring power of attorney in Queensland?
In Queensland, an enduring power of attorney must be witnessed by a qualified witness which include:
- a justice of the peace (JP);
- a commissioner for declarations (Cdec);
- a public notary; or
- a lawyer.
Resources
Enduring Power of Attorney Queensland Form
In Queensland, there are two forms you can use to make an enduring power of attorney. You need to choose the appropriate form for the type of matters you want covered, so it’s important to consult a lawyer before filling out anything.
EPOA Queensland Long Form
You can find the long form for registering an enduring power of attorney in Queensland here. We strongly recommend consulting a lawyer before filling out this form.
EPOA Queensland Short Form
You can find the short form for registering an enduring power of attorney in Queensland here. We strongly recommend consulting a lawyer before filling out this form.