Enduring powers of attorney

Planning for a time when someone else must decide.

An enduring power of attorney is the document that authorises the person you choose to manage your affairs if you lose capacity.

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A will operates after death. An enduring power of attorney operates before it, at the point where you are alive but no longer able to manage your own affairs. The two documents address different problems and one does not substitute for the other.

In Queensland, enduring powers of attorney are governed by the Powers of Attorney Act 1998 (Qld). The Act provides for two categories of authority: financial matters and personal and health matters. They can be combined in a single document or separated. They can be granted to the same person or different people.

The defining feature of an enduring power of attorney is that it survives incapacity. An ordinary power of attorney lapses when the principal loses decision-making capacity, which is precisely when the authority would be most needed. An enduring power of attorney continues to operate through incapacity, which is why proper preparation matters.

Fraser Lawyers prepares enduring powers of attorney and advises on attorney selection, the scope of authority granted, and the conditions under which the power operates. The document is only as useful as the thought that goes into it.

Scope of work

What we help with

Fraser Lawyers assists with enduring power of attorney matters, including:

Matter: What it usually involves
Financial EPOA preparation: Authorising an attorney to manage financial matters including banking, property, and investments
Personal and health EPOA preparation: Authorising an attorney to make health and personal decisions if you lose capacity
Combined EPOA documents: Single document covering both financial and personal/health authority
Multiple attorney appointments: Appointing different attorneys for different categories, or joint and several appointments
Advance health directive preparation: Documenting health care decisions and directions for specific medical circumstances
EPOA reviews and updates: Reviewing existing documents and advising on revocation or amendment
QCAT capacity review advice: Advising on Queensland Civil and Administrative Tribunal processes where capacity is disputed
Attorney duty advice: Advising attorneys on their obligations and the limits of their authority
Attorney breach matters: Advising principals, families, or beneficiaries where an attorney has acted outside their authority
Guardianship and administration advice: Where no EPOA exists and a person lacks capacity, advising on QCAT appointment processes

The distinction between financial and personal/health authority is not merely technical. Financial decisions involve assets, contracts, and property. Personal and health decisions involve where you live, what medical treatment you receive, and how you are cared for. Both categories require careful thought about who is the right person to hold that authority and under what conditions.

Many clients prepare both documents at the same time. That is sensible. The harder question is not which documents to prepare but who to appoint.

Process

What happens after you are charged.

To make a valid enduring power of attorney in Queensland, the principal must have the requisite capacity at the time of signing. Under the Powers of Attorney Act 1998 (Qld), this means the principal must:

understand the nature and effect of the document
understand what authority they are granting and to whom
appreciate the circumstances in which the power may be exercised
be able to freely and voluntarily make the document

Capacity is assessed at the time of execution, not before or after. A person who has been diagnosed with a cognitive condition may still have capacity to execute an enduring power of attorney, depending on the nature and stage of the condition. A person who is experiencing a period of confusion may lack capacity even without any diagnosis.

The practical implication is that an enduring power of attorney should be prepared while capacity is unambiguous, not at the point where it may be in question. Waiting until a health event has occurred often means waiting too long.

The document must be signed in the presence of an eligible witness who can certify the principal’s capacity. For personal and health matters, the eligible witness must be a lawyer, notary public, justice of the peace, or commissioner for declarations.

Advance health directives

An advance health directive says what you want, not just who decides.

An enduring power of attorney for personal and health matters authorises your attorney to make decisions for you. An advance health directive tells your attorney and treating health providers what those decisions should be in specified circumstances.

The two documents serve complementary purposes. A personal/health EPOA appoints the decision-maker. An advance health directive constrains the decision-maker by recording your own directions: whether you consent to particular treatments, under what circumstances life-sustaining treatment should or should not be administered, and what your values and preferences are for end-of-life care.

An advance health directive is legally binding on health care providers and on your attorney in the circumstances it addresses. It is not a vague expression of preference. A properly drafted directive records specific directions in response to specific scenarios. The document is prepared in conjunction with the enduring power of attorney and usually executed at the same time.

If there is no advance health directive, your attorney exercises their own judgment, constrained only by the requirement to act in your best interests. For most people, that is not an entirely comfortable position to put someone else in.

QCAT and attorney accountability

What happens when an attorney acts outside their authority.

An attorney under an enduring power of attorney is not free to do whatever they like with the principal’s assets or affairs. The Powers of Attorney Act 1998 (Qld) imposes significant duties: the attorney must act honestly, in the principal’s best interests, and within the scope of authority granted. They must not use the position for personal benefit. They must keep accurate records. They must keep the principal’s assets separate from their own.

Breaches range from poor record-keeping to misappropriation of funds. Financial abuse by attorneys is more common than most families expect. The attorney is often a family member, which complicates both detection and the decision to take action.

Queensland Civil and Administrative Tribunal (QCAT) has jurisdiction to review the exercise of enduring powers of attorney, revoke appointments, appoint administrators, and make orders for compensation. An application can be made by the principal, a family member, the Public Guardian, or the Public Trustee.

Addressing an attorney breach early is almost always better than waiting for the financial damage to accumulate. The longer the delay, the more difficult recovery becomes.

Time limits

Deadlines and risks.

There is no deadline for making an enduring power of attorney. The risk is that you lose capacity before you make one.

If you lose decision-making capacity without an enduring power of attorney in place, no one has legal authority to manage your affairs without a QCAT order. A family member, even a spouse, cannot simply take over management of your financial affairs, sign contracts on your behalf, or make health care decisions without authority to do so.

The alternative is an application to QCAT for appointment of an administrator (financial matters) or guardian (personal and health matters). That process takes time, involves costs, and may result in the appointment of someone you would not have chosen, or in the Public Trustee or Public Guardian being appointed instead of a family member.

A well-prepared enduring power of attorney, executed while you have unambiguous capacity, avoids that outcome entirely. It costs a fraction of a QCAT application and takes the decision out of the court’s hands.

What we do

How Fraser Lawyers acts in these matters.

Fraser Lawyers takes instructions on who you want to appoint, what authority you want to grant, and any conditions or restrictions you want to place on the exercise of that authority. The firm identifies whether separate financial and personal/health appointments are appropriate and whether an advance health directive should be prepared at the same time.

Blake Fraser prepares the documents and explains each provision before execution. This includes ensuring the witnessing requirements are satisfied and that the form of the document complies with the Powers of Attorney Act 1998 (Qld).

For clients in the later stages of planning, or where capacity concerns are already present, the firm can advise on the options available and whether QCAT proceedings may be necessary.

Practical

Documents to bring.

Proposed attorney details Full name, address, and date of birth of each proposed attorney
Proposed substitute attorney details If you want to appoint an alternative if the primary attorney is unavailable
Existing EPOA If you have an existing document you want to review, revoke, or replace
List of assets Property, bank accounts, investments, superannuation, business interests
Medical or health background Relevant only if advance health directive being prepared; no formal records required
Existing advance health directive If you have one already in place
Conditions you want to impose Any restrictions on when or how the power operates, e.g. only when certified incapacitated
Identification Photo ID for witnessing purposes

Pathway

The likely path.

Step 1 — Initial consultation.

You meet with Blake Fraser to discuss your circumstances, who you want to appoint, and what authority you want to grant. The firm considers whether separate financial and personal/health attorneys are appropriate and whether an advance health directive should accompany the EPOA.

Step 2 — Document preparation.

Fraser Lawyers prepares the draft EPOA (and advance health directive if applicable) and provides you with an explanation of each operative provision. Any conditions or restrictions you want to include are incorporated into the draft.

Step 3 — Review.

You review the draft and raise any questions or changes. The firm also recommends that proposed attorneys review their obligations before execution, so they understand what they are being appointed to do.

Step 4 — Execution.

You sign the document in the presence of an eligible witness. For personal and health matters, the witness must be a lawyer, notary public, justice of the peace, or commissioner for declarations. Fraser Lawyers can arrange witnessing at the office. The attorney must also sign an acceptance of the appointment.

Step 5 — Safekeeping advice.

The firm advises on safekeeping and who should hold a copy. The original document does not need to be registered but should be accessible to the attorney when needed. A copy is retained for the firm’s file.

Frequently asked

Questions we hear often.

Plain-English answers to the questions clients tend to ask. If your question is not here, call us.

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What is the difference between an enduring power of attorney and an ordinary power of attorney?

An ordinary power of attorney authorises someone to act on your behalf for specific purposes or during a specific period. It lapses automatically if you lose mental capacity. An enduring power of attorney under the Powers of Attorney Act 1998 (Qld) is specifically designed to survive incapacity. It continues to operate precisely when decision-making authority is most needed. The word “enduring” is legally significant: it is not merely a description of duration but a specific category of document with its own execution, witnessing, and operation requirements.

Can I appoint different attorneys for financial and personal/health matters?

Yes. The Powers of Attorney Act 1998 (Qld) allows you to appoint different attorneys for financial matters and for personal and health matters. You can also appoint multiple attorneys for the same category, with authority exercised jointly, separately, or in a combination. Many clients appoint a financially experienced person for financial matters and a family member or close friend for personal and health decisions. The choice depends on who is best placed to make each category of decision in your interests.

Can I restrict what my attorney can do?

Yes. The enduring power of attorney can be drafted with specific conditions and limitations. For example, you can restrict the financial attorney from selling your home without consent of a nominated person, or specify that the power only operates after two medical practitioners certify that you lack capacity. Restrictions must be clearly drafted to be effective. A vague or ambiguous restriction may create uncertainty at the point where the document needs to be relied upon, which is not a position anyone wants to be in.

What is an advance health directive and do I need one?

An advance health directive is a document in which you record your own directions for health care decisions in specified circumstances. It is legally binding on health providers and on your personal/health attorney. Unlike an enduring power of attorney, which appoints a decision-maker, an advance health directive records what the decision should be for defined scenarios, including end-of-life care. Not everyone prepares one. It is most useful where you have clear views about specific types of medical treatment or care, or where you want to reduce the burden of decision-making on your attorney in difficult circumstances.

What can QCAT do if my attorney is acting inappropriately?

Queensland Civil and Administrative Tribunal has jurisdiction under the Powers of Attorney Act 1998 (Qld) to review the exercise of an enduring power of attorney, revoke an appointment, appoint an administrator or guardian in place of the appointed attorney, and make orders for compensation where the attorney has misused their position. Applications can be made by the principal, a family member, or in some circumstances the Public Guardian or Public Trustee. The process is separate from criminal proceedings for financial abuse, which may also be available where funds have been misappropriated.

What happens if I lose capacity and have no enduring power of attorney?

Without an enduring power of attorney in place, no one has immediate legal authority to manage your financial affairs or make personal and health decisions on your behalf. A family member who wants that authority must apply to QCAT for appointment as administrator (financial) or guardian (personal and health). The process involves a formal hearing, supporting medical evidence, and QCAT assessment of the proposed appointee’s suitability. It takes time and involves costs. Where no suitable family member is available or the applicant is not approved, the Public Trustee or Public Guardian may be appointed instead.

Talk to Fraser Lawyers about your enduring power of attorney.

A short consultation is sufficient to identify what documents you need and who should be appointed. Fraser Lawyers is based at 86 Bundall Road, Bundall, and acts for clients across the Gold Coast and Queensland.

Call (07) 5554 6116 Send a short enquiry