Frequently Asked Questions About Enduring Power of Attorney in Queensland

An Enduring Power of Attorney (EPA) is a critical legal document in Queensland that lets you appoint someone (your attorney) to make decisions on your behalf if you lose capacity or otherwise can’t act. While many people know the basics—like it allows someone to handle finances or personal matters—the specifics often prompt further enquiries.

This guide answers frequently asked questions about EPAs in Queensland, shedding light on how they differ from general powers of attorney, what “enduring” truly means, and how to safeguard your interests while granting someone extensive authority.

General Overview

What Is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney is a legal instrument recognised by Queensland law that remains valid even if the principal (the person making the EPA) loses capacity. This means your chosen attorney can continue making decisions—financial, personal/health, or both—when you’re unable to do so. It’s different from a General Power of Attorney, which ceases if you lose mental capacity.

“The real strength of an Enduring Power of Attorney lies in its continuity, ensuring someone you trust can step in if you can’t make decisions yourself.”
— Wills & Estates Lawyer, QEL

Who Needs an EPA?

Any adult who wants peace of mind about future decision-making should consider an EPA. It’s especially advisable if:

• You have significant assets or complex finances.
• You’re approaching older age or have a progressive illness.
• You travel frequently or live part-time overseas.
• You simply want clarity about who would handle your affairs if you can’t.

Creation and Scope

How Do I Create an EPA?

You must:

1. Complete the Correct Form: In Queensland, that’s typically Form 2 or Form 3 (Enduring Power of Attorney).
2. Appoint an Attorney: You choose someone you trust, like a spouse or adult child, to act for financial, personal/health matters, or both.
3. Sign in the Presence of an Eligible Witness: Must be a lawyer, justice of the peace, or commissioner for declarations who confirms you have capacity.
4. Clarify When It Commences: Immediately or only upon the principal’s loss of capacity.

(Tip: While drafting can be done independently, many people consult a lawyer to ensure compliance with Queensland legislation and to handle any complexities—like multiple attorneys.)

What Powers Can I Grant?

An EPA can cover:

• Financial Matters: Handling bank accounts, paying bills, overseeing investments, selling property.
• Personal/Health Decisions: Determining living arrangements, consenting to medical treatments, or deciding on day-to-day care.

You can split these responsibilities or place them all in one attorney’s hands. Some prefer separate attorneys for finances vs. health, depending on each person’s expertise.

Can I Limit My Attorney’s Authority?

Yes. You can:

• Restrict the attorney to particular bank accounts or investments.
• State that property cannot be sold unless a second attorney agrees.
• Allow them to manage only daily expenses but not large, capital transactions.
• Impose conditions (e.g., requiring a medical certificate of incapacity before certain powers commence).

Caution: Overly complicated limits can confuse institutions. Ensure your instructions are clear and workable.

Commencement and Capacity

When Does an EPA Start Operating?

You can choose:

1. Immediately: Your attorney can act from the day it’s signed, though you retain decision-making ability unless you decide to let them handle things.
2. Upon Losing Capacity: The attorney’s authority “endures” and kicks in only after a doctor or relevant authority certifies you cannot make informed decisions.

How Does Queensland Define Capacity?

Capacity in Queensland means you can:

• Understand the nature and consequences of decisions.
• Freely and voluntarily make those decisions.
• Communicate them in some way (speech, writing, or other means).

If someone challenges your capacity, they may require evidence (such as a GP or specialist letter) to show you understood the power you were granting when you signed.

“Timing and clarity around capacity are critical. An EPA triggered only by ‘loss of capacity’ needs a defined process for confirming that capacity is lost.”
— Senior Paralegal, QEL

Multiple Attorneys and Disputes

Can I Appoint More Than One Attorney?

Yes, you can appoint multiple attorneys, assigning them to act:

• Jointly (they must agree on every decision).
• Severally (each can decide independently).
• Jointly and Severally (they can act together or alone, providing flexibility).

Or you might name different attorneys for financial matters vs. health/personal matters.

What If My Attorneys Disagree?

If attorneys acting jointly cannot reach an agreement, the decision is stalled. Some solutions include:

• Specifying a Tiebreaker in your EPA (e.g., appoint a third neutral attorney).
• Mediation if attorneys clash over major issues.
• Approaching the Queensland Civil and Administrative Tribunal (QCAT) to review or revoke an attorney’s appointment if the deadlock persists.

(Tip: Try to pick individuals who share similar views or can communicate effectively to minimise disputes.)

Ongoing Obligations and Accountability

Does My Attorney Have to Report to Anyone?

Attorneys must act in your best interests, avoid conflicts, and keep transactions separate from their personal finances. There’s no automatic formal oversight unless a family member or third party raises concerns with QCAT or the Public Guardian about potential financial abuse or mismanagement.

Can I Ask My Attorney for Regular Updates?

Yes. You can require periodic reporting or audits as part of your EPA conditions. Some people instruct their attorney to provide monthly expense summaries or to consult another trusted person (like an accountant) for major decisions.

Revising or Revoking an EPA

What If I Change My Mind?

You can update or revoke an Enduring Power of Attorney at any time, so long as you remain mentally capable. Typically, you might revoke it via a formal revocation document, ensuring the attorney and relevant institutions (banks, etc.) are notified.

(See “Updating or Revoking a Power of Attorney: Key Steps and Considerations” for a more detailed process.)

Does an EPA Expire Automatically?

An EPA usually ends if:

• The principal passes away (then the will’s executor steps in).
• The principal revokes it while having capacity.
• The court or QCAT suspends or revokes it due to attorney misuse.
• The attorney resigns or becomes incapable themselves—unless there’s a back-up attorney named.

Safeguards and Avoiding Abuse

Potential Risks of Attorney Misuse

• Financial Exploitation: Using your funds for personal gain.
• Conflicts of Interest: Mixing their finances with yours or making decisions that primarily benefit them or other relatives.
• Neglect: Failing to manage your bills or healthcare decisions diligently.

“Establishing an EPA is about trust, but also about having the right precautions in case something goes awry—like naming a secondary attorney or specifying oversight.”
— Estate Planning Advisor, QEL

Strategies to Minimise Abuse

1. Choose Reputable Attorneys: People who’ve demonstrated reliability, honesty, and financial competence.
2. Define Clear Instructions: Outline how and when they can act, or require certain major transactions to have a second sign-off.
3. Regular Communication: Encourage open dialogue between attorneys, family members, or a professional adviser.
4. Keep a Secondary Attorney or Monitor: If you name multiple attorneys, they can watch each other’s actions, reducing the risk of wrongdoing.

Frequently Asked Questions (FAQ)

Q1: Do I still have control if my EPA is active but I haven’t lost capacity yet?
A: Yes, an EPA can start immediately, but you remain free to make decisions or override the attorney’s actions unless you formally delegate control. The attorney’s powers run concurrently with yours.

Q2: Is it mandatory to involve a lawyer when making an EPA?
A: No, you can DIY using Queensland Government forms, but many prefer professional help to avoid mistakes—especially if multiple attorneys or complex finances are involved.

Q3: Does my attorney need legal or financial qualifications?
A: Not legally. They must be over 18 and not be bankrupt if handling financial matters, but formal qualifications aren’t mandatory. Still, choosing someone with organisational or financial competence is wise.

Q4: What if the attorney lives in another state or country?
A: They can still act, but practicality might be difficult. Ensure they can manage your affairs effectively from afar (via online banking, phone calls, a local representative, etc.). Check if their location complicates witnessing or Queensland-specific forms.

Q5: Can I use the same attorney for my Enduring Power of Attorney and other estate documents?
A: Yes, many do. For instance, your will executor might also be your attorney. However, confirm they’re willing and you’re comfortable with them having multiple roles.

Q6: Does an EPA cover medical decisions like life support?
A: Yes, if you granted personal/health authority. However, some advanced health directive instructions may override the attorney’s power if there’s a direct conflict.

Example Scenario

Scenario:
Bill, 70, wants his son to handle finances if Bill’s health declines. He completes Form 3 Enduring Power of Attorney for financial matters only, specifying:

• The power commences upon a doctor’s certificate verifying Bill’s incapacity.
• His daughter retains authority over personal and health matters (appointed in a separate section).
• Any property sale over $50,000 requires a second attorney’s written consent.

He arranges a lawyer to verify capacity and witness. The final form is given to relevant banks, ensuring they know his instructions if the time comes.

Conclusion

An Enduring Power of Attorney is a cornerstone of future planning in Queensland, allowing you to proactively choose who’ll manage your affairs should you be unable to. By clarifying the scope of authority, detailing when it starts, and naming a trusted attorney (or multiple attorneys), you ensure your personal and financial well-being is preserved even if life takes an unexpected turn.

“An EPA is not about giving up control but making sure that if something happens, control remains in safe, chosen hands.”

Remain mindful of:

• Capacity requirements at the time of signing.
• Proper witnessing by an authorised person.
• Regular reviews if your relationships or finances shift.
• Addressing potential attorney disputes or oversight early.

If you’re still unsure, seeking professional advice can reduce confusion and ensure the document meets Queensland’s legal standards—securing a clear and supportive arrangement for you and your loved ones.