Powers of Attorney (Qld)
A power of attorney is a legal document that allows a person to give another person the ability to make decisions on their behalf. These decisions can be about personal matters or financial matters. They come in two different forms: general power of attorney and enduring power of attorney.
General power of attorney
A general power of attorney allows a person to be appointed to make decisions for the appointor, while the appointor has the capacity to make decisions. If the appointor loses capacity, it will no longer operate.
A person who does not want to manage their financial affairs may appoint someone else with the power to do so. A person may do this when they are going on an extended trip overseas or simply to reduce the number of decisions they have to make themselves;
Enduring power of attorney
An enduring power of attorney begins to have effect if the appointor loses capacity. People who are entering their older years often create this document before they lose capacity. This is to decide who will make decisions for them about things such as healthcare and where they live if they lose capacity.
What is capacity?
When someone has capacity they can make decisions. A person who has capacity can do the following when making decisions:
- Comprehend and remember information relevant to decisions;
- Grasp the available choices;
- Weigh their decisions based on the options available; and
- Communicate their intentions for how they wish to proceed; and
- Freely and voluntarily make decisions.
Persons living with a disability, including mental or intellectual impairment, may have the capacity to make decisions. Similarly, persons who live with a mental illness, dementia, brain injury, or the elderly may have the capacity. The assessment for whether a person has capacity is based on whether they can properly apply the decision-making process as described above.
How to register a power of attorney
Powers of attorney do not always have to be registered. They can only be registered where they pertain to the making of financial decisions. A document that solely relates to making healthcare decisions cannot be registered. However, a land transaction that purports to rely on a power of attorney for the authority to proceed with the transaction will not be able to go ahead unless it is registered.
In Queensland, the Powers of Attorney Act 1998 governs how powers of attorney should be registered. Form 16, a request for registration, needs to be lodged with the Queensland Titles Registry. It is the same form that is lodged if applying for revocation. In addition to form 16, the original document or a certified copy needs to be filed. If you provide a certified copy rather than an original, you will need to ensure that it is certified in compliance with section 14 or 45 of the Powers of Attorney Act 1998. Supporting documents may also need to be registered. Examples of such supporting documents include a death certificate or trust deed. Supporting documents may be certified copies rather than originals but need to be appropriately certified.
How to withdraw or amend a power of attorney
A general power of attorney is automatically revoked when the person to whom it relates ceases to have capacity or passes away. You also can revoke it at any time while you have capacity by destroying the original document and informing the person appointed as the attorney by the document and all other relevant persons, such as persons with whom the attorney has been dealing. If the power of attorney is registered, you will also need to register a revocation. A general power of attorney can also specify an end date, and if this applies, it will end on that date.
Enduring powers of attorney cannot be revoked by the persons to whom they relate after they cease to have capacity. However, a person who still has capacity can revoke an enduring power of attorney. Further, an enduring power of attorney may nominate an end date, and the document will no longer have effect after that date. Also, enduring powers of attorney may cease to operate in some other situations such as:
- Where the nominated attorney becomes incapacitated, bankrupt, insolvent or passes away; or
- The attorney starts to work as a paid carer, service provider or health provider for the person.
What happens if you lose capacity and you do not have one?
If you lose capacity, there will not be anyone who automatically can make decisions about things that impact your property or finances. To make these decisions, a person will need to make an application to the Queensland Civil and Administrative Tribunal (QCAT). This can be an expensive and stressful process for those involved.
For health decisions, there is an order for determining who can make decisions when a person lacks capacity. You can read about this order here.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.