Read on below to uncover:
What a Power of Attorney is
The Different types of POA in Queensland
What each POA controls
Why Queensland law on capacity matters
How to appoint & make changes to your POA
Where Safewill can help you
What is a Power of Attorney?
Power of attorney is a legal document that grants authority to an appointed person to make decisions on your behalf if illness, injury or travel disables you from doing so. Depending on the type of POA, this person can carry out financial, legal and health decisions for you. Selecting a trusted person suited to these specific responsibilities is therefore extremely important and ensures your wishes are carried out on your behalf. From enduring to general, and medical to financial power of attorney, we delve into these different types below
What are the different types of power of attorney in Queensland?
There are two different types of Power of Attorney:
1. General POA: represents a temporary arrangement that grants authority for a principle to make decisions on your behalf for a specified length of time. General POA’s are usually relevant if you're unable to manage affairs whilst overseas, or suffering from temporary illness or injury.
2. Enduring POA: represents a more permanent arrangement that grants authority for a principle to make decisions on your behalf if you become unable to do so.
What are the responsibilities of POA's in Queensland?
A general or enduring POA is authorised to make decisions on financial and legal matters. These duties include:
Enact decisions in line with your wishes and best interests
Avoid conflicts of interest
Act with honesty and transparency
Collaborate with you and others in the community to make decisions
Record keeping of decisions
Protect you from exploitation
Act within time frame & power limitations of authority
Depending on the type of POA, this financial or legal decision making authority will be granted at a specified time, event or if you lose capacity. You can choose specific or broad authority for your POA to take charge of; whether that covers general financial matters or specific control of property assets.
In contrast, a POA does not have authority to carry out health care/ personal decisions for you in Queensland, even if you lose capacity. To grant someone authority to make these decisions for you if you no longer can requires appointing an enduring guardian. They will cover decisions on:
Below, we explain the practicalities of what this ‘capacity’ legal term means for you, your'e enduring POA and enduring guardianship.
What does 'capacity' mean in Queensland law?
Capacity refers to the ability to make your own decisions. In Queensland, its ‘capacity assumed until proven otherwise’ logic. An enduring POA or enduring guardianship will therefore only kick-start if evidence is gathered by doctors and specialists to show a loss of this decision making ability.
Who to appoint as your POA:
In Queensland, your power of attorney can be anyone over the age of 18 who has full capacity and understanding of the POA role. This could be a family member, trusted friend, lawyer or accountant. Your attorney cannot be:
A recent paid carer
Your health provider
Your residential services provider
Someone with a history of bankruptcy of financial crime
Someone with financial conflicts of interest
You can appoint multiple attorneys to act individually, jointly, or by majority. Additionally, you can appoint successive or alternative attorney options:
Successive attorney appoints a replacement if your originally appointed attorney becomes unable to fulfil the role due to loss of capacity, ill health or retirement from the role.
Alternative attorney can be appointed to take over the original attorney’s role if they are overseas or temporarily unable to complete the role
How to officially appoint power of attorney in Queensland?
To officially appoint chosen attorneys, you'll need to fill out a POA form and have it witnessed by a qualified witness; such as a lawyer, justice of the peace, or a medical practitioner. In Queensland, remote witnessing of POA forms ended in July 2021 and enduring power of attorney now require in person witnessing. A general POA form can however be witnessed remotely under current Queensland law. The required forms differ depending on the type of POA you appoint:
The general power of attorney form for Queensland is a standard form available on the Government website.
The enduring power of attorney form will depend on how you’ve allocated tasks to your attorneys, being either the:
The ‘short form’ (Form 2, version 4) for attorneys appointed for only personal/ health matters or only financial matters, as well as attorneys which cover both.
The ‘long form’ (Form 3, version 4) is for appointing different attorneys for persona/ health matters and financial matters
For all of the above forms, the residing attorney must also sign the ‘Attorney acceptance’ section to officially grant them authority when the time comes. For this reason, it’s important to provide all attorney’s with a copy of the POA form.
Does a POA need to be registered in Queensland?
No. A POA is only required to be registered with Titles Queensland if they will be buying and selling real estate. Whilst registration if not required if this is not the case, it's important to provide a copy of the POA form to your financial and healthcare institutions. At this time you should be sharing your wishes and preferences with the attorney’s and surrounding family, so that they can make decisions that align with your values and beliefs.
Can I make changes to power of attorney in Queensland?
It's important to review and update your power of attorney regularly to ensure that it reflects your current wishes and circumstances. In Queensland, changes or cancelling your POA requires still having capacity. If this is no longer the case, someone with a vested interest in your welfare must apply on your behalf. Assuming this person is not your existing enduring guardian, this requires an application for enduring guardianship order to the Queensland Civil and Administrative Tribunal (QCAT).
If you still have capacity, you’ll need to seek legal advice, complete a revocation form and inform Titles Queensland to make changes to registered power of attorney’s. Notifying your estate attorney and other institutions also provides a valuable written record of any POA changes.
How Safewill can help with Queensland power of attorney
Safewill offers expert and affordable legal guidance on appointing or changing your power of attorney or enduring guardian in Queensland. We'll help you through this tricky process with lower cost, greater ease and with more compassion than anyone else in the industry. To find out more, get in touch for a one-to-one discussion on 1800 103 310 , or live chat now.