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Power of Attorney FAQs

View helpful information regarding Enduring Powers of Attorney based on the most common questions we receive from our clients. For a more detailed explanation, or for legal advice about your specific situation, contact our experienced estate lawyers on the Gold Coast.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document authorising another person to act on your behalf to manager your affairs. An Enduring Power of Attorney is a convenient method of allowing someone to handle your affairs if you go overseas, take an extended holiday, suffer from poor health, have an accident or reach a stage in your life where you need greater assistance.

The person appointed as your Attorney is authorised to do all things that you would normally be able to do yourself for example signing documents, paying the bills, accessing (including opening and closing) bank accounts, buying or selling real estate and/or making general enquiries on your behalf. 

An Enduring Power of Attorney is just as important as a legal Will.  Whilst a Will operates on your death, an Enduring Power of Attorney operates during your lifetime.

What is the difference between an Enduring Power of Attorney and a General Power of Attorney?

If you give someone a General Power of Attorney (for example to sign documents for you in your absence) that document will immediately cease to be in effect if you lose capacity.

If you give someone an Enduring Power of Attorney this means the Attorney is able to continue to act for you if you lose capacity.  For example if you develop a medical condition (such as suffering from dementia, a head injury in a car accident, or have a stroke which results in you being left in a vegetated state) you may still live for quite a long period of time but be completely unable to handle your own affairs or make any decisions. 

Who should have an Enduring Power of Attorney?

 Anyone who is over the age of 18 years and who has legal capacity to make decisions should have an Enduring Power of Attorney.

Who can you appoint as your Attorney?

Anyone who is over the age of 18 years, who is not your current health care provider (i.e. your doctor), who is not bankrupt, and who is not a paid carer (please note, receiving a carer’s pension does not preclude a person from being an Attorney). The most common people who are appointed as Attorneys are close family members (for example a spouse or a child), a trusted friend or a professional advisor (such as an accountant or a lawyer).

You should ask the person you want to appoint as your Attorney if they will agree to act as your Attorney. Being someone’s Attorney is a great responsibility and you must trust the person who is appointed to look after your affairs. You may wish to consider appointing more than one (1) Attorney.  A maximum of four (4) Attorneys may be appointed.

Can your Attorney reside in another state?

 Whilst it is possible to appoint an Attorney who does not reside in the same State as you, it is more preferable and practical to appoint someone as your Attorney who resides nearby. 

What decisions can an Attorney make on your behalf?

 Depending on the powers you give to your Attorney, your Attorney can make decisions about your personal/health matters and/or financial matters.

Examples of personal/health matters include decisions about where and with whom you are to live, whether you work or undertake educational training, whether you apply for a licence or a permit, day to day issues like diet and your health care needs (for example having an operation).

 Examples of financial matters include how your income should be invested, buying and selling real estate, shares and other assets, operating your bank accounts and spending money on your behalf in general.

What happens if I do not have an Enduring Power of Attorney?

 If you do not have an Enduring Power of Attorney and you lose legal capacity to make decisions on your own behalf the Government can step in and take responsibility for these decisions. This may include the Adult Guardian and/or the Public Trustee. 

 An application can also be made to the Court or the Guardianship Tribunal in these circumstances to appoint an Attorney to act on your behalf.  The process to make such an application to the Court and/or the Tribunal can be quite stressful to your family members. 

If I make an Enduring Power of Attorney can I change or revoke it?

 Yes you can change your Enduring Power of Attorney or cancel (revoke) it at any time, provided you have the required legal capacity to do so (i.e. you understand what you are doing).

 If you do decide to cancel (or revoke) your Enduring Power of Attorney you must first inform your Attorney that powers given to them under your previous Enduring Power of Attorney have been revoked.

When will my Enduring Power of Attorney end?

 There are several events which will bring your Enduring Power of Attorney to an end, for example:

  • If you get married your Enduring Power of Attorney will be revoked unless your new spouse is also your Attorney.

  • If you get divorced.

  • If you die.

  • If your Attorney withdraws.

  • If your Attorney becomes your paid health care provided (i.e. your doctor).

  • If your Attorney becomes incapable.

  • If your Attorney becomes bankrupt or insolvent.

  • If your Attorney dies before you.

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