A Power of Attorney is a legal document which enables you to appoint another person as your attorney to make decisions or sign documents on your behalf. This excludes decisions such as making a will.
General Power of Attorney
A General Power of Attorney gives someone (your ‘attorney’) the legal authority to make decisions on your behalf and is a convenient way to ensure that your affairs can be appropriate handled if you are absent (such as overseas) or suffer poor health or reach an age when you need greater assistance. In other words, it is a legitimate way of ensuring that someone else acts for you when you cannot. This legal power is not without limits and the document can specify the type of decisions the person can make or for which the person can be responsible.
Enduring Power of Attorney
Another aspect of estate planning to be considered by people of all ages is the use of an Enduring Power of Attorney. This document enables your attorney to make decisions on your behalf for financial and/or personal and health matters. As the name suggests, an Enduring Power of Attorney endures in the event that you become mentally or physically incapacitated, unlike a General Power of Attorney which is null and void should this occur.
You can limit the power you give so that it is used only in the event that you lose the capability to make decisions yourself, or it can be an open-ended power that commences immediately.
Who can be my attorney?
You can appoint any adult person or persons to be your attorney however it is important to ensure that you carefully consider your attorney(s) as you may be giving the same control over your assets and power to make decisions that could affect you personally and financially. Your attorney(s) cannot be your paid carer or health-care provider.
What happens if I don’t have a Power of Attorney and I lose capacity?
If you did not have a Power of Attorney and you lost capacity, you may not have the opportunity to make your wishes known and ultimately someone would step in to make financial and/or health decisions on your behalf.
For example, this may involve an application for the appointment of a guardian, through the Queensland Civil and Administrative Tribunal to manage your affairs or make a specific decision (usually financial in nature).
If your attorney does not comply with their duties and obligations, the Public Guardian can investigate them and the Queensland Civil and Administrative Tribunal (QCAT) can remove them as your attorney.
There may be other penalties including criminal sanctions, compensation or damages awards, account of profits or other remedies against an improperly acting Attorney.
It may also involve the Public Trustee of Queensland (a State Government body) appointed to take care of your financial matters.
There is also scope under s.62 of the Powers of Attorney Act 1998 (Qld) for an automatic appointment of a close relative to make certain personal and health matters as you’re your “Statutory Health Attorney”. This is usually someone close to you such as a spouse, relative or carer, who your treating doctor would ask to make decisions on your behalf.
What if I already have a Power of Attorney but want to change it?
You can revoke or cancel your existing Power of Attorney at any time should your circumstances change so long as you have the capacity to understand the decisions you are making at the time you revoke it. To revoke a Power of Attorney you are required to complete and sign a prescribed form legal document and we can assist you with completion of the required paperwork.