What is a power of attorney?

A power of attorney is a legal document prepared under the provisions of the Power of Attorney Act 1998 (Qld) that gives another person authority to make personal and/or financial decisions on your behalf.

Personal decisions related to the principal’s (the person who makes the power of attorney) health care, care and welfare.

Financial decisions relate to any matters of the principal’s financial or property affairs.

Which power of attorney should I use?

There are 2 types of power of attorney:

1. General Power of Attorney; and 

2. Enduring Power of Attorney.

A General Power of Attorney relates to financial decisions only. A principal may appoint one or more attorneys to do anything the principal can lawfully do in respect of the principal’s financial matters for a specific period or event. The appointment under a general power of attorney ends when the principal loses capacity.

An Enduring Power of Attorney relates to both financial decisions and/or personal decisions. A principal may appoint one or more attorneys to do anything the principal can lawfully do in respect of the principal’s financial and personal matters.  The attorney’s power to make financial decisions under an enduring power of attorney can be for a specific period event. The attorney’s power to make personal decisions under an enduring power of attorney does not come into effect until you lose capacity. An enduring power of attorney will not end when the principal loses capacity. It is important to note that once a principal loses capacity, they are unable to revoke their enduring power of attorney.

Each type of power of attorney has a specific function and purpose depending on your needs. Consult with one of our wills and estate lawyers in Cairns to determine the best type of power of attorney for you.

When should I make a power of attorney?

We recommend that you should make your power of attorney at the same time as making your other estate documents. Your attorney, as with your other estate documents should be reviewed annually to ensure they reflect your current wishes.

Who should I appoint as my attorney?

Any person can be your attorney as long as they are:

• over the age of 18 years;
• are not your current paid carer or health provider; and
• where the power of attorney is for financial decisions, must not be bankrupt or insolvent.

The person you appoint as your attorney should be someone that you trust completely as they will be making decisions on your behalf.

How do I make an enduring power of attorney?

A power of attorney must be on the approved form in accordance with the provisions of the Power of Attorney Act 1998 (Qld). When you make a power of attorney you must have the capacity and understand the nature and effect of the power of attorney. If you do not have capacity the power of attorney (and any decisions made by your attorney under it) may be void.

If you require your attorney to sell, lease or buy real property, your attorney must be registered with the Queensland Land Registry.

Cairns Wills & Estates lawyers can help you get your power of attorney documents sorted. Contact us today.