How to Make a Power of Attorney in Queensland: A Step-by-Step Guide

A Power of Attorney (POA) is a powerful legal instrument that allows someone (the principal) to choose another person (the attorney) to make financial, personal, or health decisions on their behalf. In Queensland, properly setting up a Power of Attorney can prevent legal and financial complications if you lose capacity or simply can’t attend to your affairs.

This guide walks you through how to create a valid Power of Attorney in Queensland, step by step—covering the forms you’ll need, essential witnessing requirements, how to address capacity, and practical tips to avoid mistakes.

Introduction

Why a Power of Attorney Matters

Life is unpredictable—illness, injury, or even extended travel can leave you unable to handle financial transactions or personal choices. A Power of Attorney ensures someone you trust can step in, paying your bills, managing assets, or making medical decisions if necessary.

“Having a Power of Attorney in place isn’t about giving up control; it’s about protecting yourself and your loved ones from unexpected legal headaches.”
— Wills & Estates Lawyer, QEL

In Queensland, specific forms and witnessing rules determine whether your Power of Attorney is valid. By following these guidelines, you gain peace of mind knowing someone reliable can represent your interests if you’re ever unable to speak or act for yourself.

Two Common Types in Queensland

1. General Power of Attorney
   • Typically used for a set period or specific circumstance (e.g., you’re overseas temporarily).
   • Ceases if you lose decision-making capacity.
2. Enduring Power of Attorney (EPA)
   • Continues even after you lose capacity (e.g., dementia, severe injury).
   • Often covers personal, financial, and sometimes health decisions.

This article focuses primarily on how to make an Enduring Power of Attorney, given its significance when planning for potential loss of capacity.

Understanding the Powers You Can Grant

Financial, Personal, and Health Decisions

Under Queensland law, you can decide which areas your attorney can manage:

• Financial Matters: Paying bills, selling assets, managing bank accounts, investments, or property.
• Personal/Health Matters: Choosing living arrangements, consenting to medical treatments, or managing daily care decisions.

(Note: You can restrict your attorney’s authority—for instance, letting them handle certain bank accounts only. Conversely, you might allow broad control over all financial and health decisions if you trust them fully.)

Start Dates and Triggers

For an Enduring Power of Attorney, you may specify:

• Immediate Effect: Your attorney can act once the document is signed, but you still retain your own decision-making ability unless you voluntarily step aside.
• Commencement on Loss of Capacity: The power begins only when a medical professional or relevant authority deems you no longer able to make sound decisions.

Capacity: Key Legal Requirement

What Is Capacity?

In Queensland, you must fully understand the nature and consequences of a Power of Attorney at the time you sign it. This is called having capacity. If you’re under duress, heavily medicated, or lack mental clarity, your POA could be deemed invalid.

Proving Capacity (If Questioned)

• Medical Assessments: If someone challenges your capacity, you might undergo a doctor’s evaluation.
• Witness Verification: The official witness for your POA will confirm they observed you willingly and knowingly sign.

(Quote: “Enduring Powers of Attorney are only valid if the principal is of sound mind. Always ensure the witness is confident in your full understanding.” — Legal Intake Officer, QEL)

Step-by-Step: Creating a Power of Attorney

Follow these general steps to ensure your document meets Queensland’s legal standards. While you can manage it yourself, many people find professional advice invaluable—especially for complex estates or if multiple attorneys are involved.

Gather and Complete the Correct Forms

Queensland uses specific forms for powers of attorney:

• Form 2: Enduring Power of Attorney (Short Form)
  Generally used for simple, broad appointments of one attorney.
• Form 3: Enduring Power of Attorney (Long Form)
  Suited for multiple attorneys, separate personal/health vs. financial decisions, or detailed instructions/restrictions.

(The Queensland Government website provides these free forms, with instructions. Be sure to download or use the updated versions.)

Decide the Scope of Authority

• One Attorney or Multiple Attorneys?
  You can appoint more than one attorney, specifying if they act jointly (all must agree) or severally (any can act independently).
• Financial vs. Personal/Health Decisions?
  Indicate which areas each attorney can handle. Some prefer one attorney for finances, another for personal care.

Specifying Conditions or Limits

You might want to:

• Prohibit your attorney from selling your family home without a second opinion.
• Restrict use of certain bank accounts or trust funds.
• Allow them to make decisions about daily healthcare but not major surgeries.

(Ensure these instructions are clear. Overly vague statements can cause confusion, and some conditions might be legally unenforceable if they contradict QLD law.)

Witnessing the Document Correctly

Queensland law demands an eligible witness—often a lawyer, justice of the peace (JP), or commissioner for declarations—who is:

• At least 18 years old.
• Not the attorney or a relative of the attorney or principal.
• Satisfied you understand the document’s nature and effect.

Filling out forms is only half the story; incorrect or unqualified witnessing can invalidate everything. Double-check your witness’s credentials and ensure your signature and the witness’s signature occur on the correct pages.

Final Checks and Distribution

• Sign and Date: In the witness’s presence, you must sign, and the witness signs next.
• Give Copies: Provide each appointed attorney with a copy, so they know their role and keep it accessible if needed.
• Store the Original Securely: Perhaps in a safe or with your lawyer.
• Consider Notifying Key Institutions: Banks, doctors, or care facilities might note your attorney’s power on their records.

(Tip: Some banks may require an originally certified copy, not just a photocopy. Confirm if you need multiple originals or official certified copies.)

Potential Pitfalls and How to Avoid Them

Conflicting Instructions

If you appoint multiple attorneys but fail to specify how they work together—e.g., do they need unanimous decisions?—they could clash. Clear language in your POA prevents stalemates.

Unclear Commencement Date

If you want the POA to begin only upon “losing capacity,” clarify how capacity is tested (a medical certificate, etc.). Failing to specify can produce confusion over whether the attorney can already act.

Capacity Challenges

If someone suspects you lacked capacity or faced undue influence, they could challenge the validity of your POA. Minimising risk:

• Use a medical or legal witness who can confirm your mental clarity.
• Avoid finalising the POA if you’re heavily medicated or in a pressured environment.

Overlooking Digital Assets

Attorneys might need authority to manage online bank portals, social media, cryptocurrencies, or domain names. If these aren’t documented, attorneys could struggle to prove authority to digital service providers.

(Quote: “Explicitly adding digital powers can save time. Many online services ask for proof your attorney can handle digital access.” — Estate Planning Advisor)

Costs and Fees

Creating a Power of Attorney yourself may involve no direct government fees, unless you seek professional guidance or pay for official certification of copies. However, engaging a lawyer ensures legal compliance, especially if your situation is complex or you require extensive custom clauses.

Table 1: Typical Costs for Making a Power of Attorney

Maintaining and Updating Your Power of Attorney

Regular Reviews

Major life changes—marriage, divorce, new financial ventures, or the death of your chosen attorney—can necessitate updating or revoking your Power of Attorney. Failing to do so could leave someone with authority you no longer trust.

Revocation

You can revoke an Enduring Power of Attorney so long as you have capacity. This involves:

• Signing a Revocation Form (witnessed similarly).
• Notifying the attorney(s).
• Informing any institutions that might rely on the old POA (banks, health services).

(Caution: If you lose capacity before revoking an unwanted POA, you can’t legally revoke it yourself. Another party may need to intervene via the Queensland Civil and Administrative Tribunal.)

Practical Tips for Success

1. Talk to Your Attorney(s)
   • Explain your preferences, financial structures, and health directives. Surprises lead to confusion or misaligned expectations.
2. Use Plain Language for Clauses
   • Overly legalistic or ambiguous statements can cause disputes. Keep instructions concise but clear.
3. Consult a Professional for Complex Estates
   • If you own businesses, overseas assets, or large investment portfolios, professional assistance is often worthwhile. Mistakes can cost significantly more to fix later.
4. Store Documents Securely
   • Give a certified copy to your attorney, keep the original in a locked cabinet or safe, or have your lawyer store it. Quick access matters during emergencies.
5. Integrate with Estate Plans
   • A Power of Attorney complements your will, advanced health directives, and superannuation nominations. Review them as a cohesive plan.

Example Scenario

Scenario:
Evelyn, 67, wants her daughter to handle finances only if Evelyn becomes mentally incapacitated. She drafts an Enduring Power of Attorney specifying:

• Her daughter can handle “all financial decisions.”
• It commences only “upon a doctor’s certificate that I lack capacity.”
• She names her sister for personal/health matters if that time comes, to avoid burdening her daughter emotionally.

Evelyn’s lawyer ensures each detail is in Form 3: Enduring Power of Attorney (Long Form), clarifies capacity triggers, and arranges a JP to witness. Banks record this arrangement, noting it will only activate upon receipt of medical confirmation that Evelyn cannot manage her affairs.

Conclusion

A Power of Attorney in Queensland ensures your affairs are handled by someone you trust, whether you temporarily step away or lose capacity permanently. By carefully preparing the correct form, understanding witnessing requirements, and explicitly detailing the scope of your attorney’s powers, you protect both your personal interests and your loved ones from legal uncertainties.

“An Enduring Power of Attorney is one of the most important documents in estate planning. It’s not just about financial security—it’s also a safeguard for personal and health decisions.”

Remember to:

• Check eligibility for your witness.
• Decide commencement dates carefully.
• Maintain clarity in instructions.
• Periodically review and update as needed.

If you’re at all unsure—about your capacity, how many attorneys to appoint, or best restricting certain decisions—seek professional legal advice. A well-executed Power of Attorney offers invaluable security, letting you and your family concentrate on life’s essential matters without unwelcome surprises during times of vulnerability.