EPA 1 – Enduring power of attorney toolkit
This factsheet is part of a set of factsheets about enduring attorneys under the Powers of Attorney Act 1998 (Qld) (POA Act).
The factsheets in this series are:
EPA 1 – Enduring power of attorney toolkit
These factsheets do not relate to general powers of attorney or to decision making for children and minors.
- 1 Meaning of terms
- 2 What is an enduring power of attorney (EPA)?
- 3 Who can make EPA
- 4 Who can be an enduring attorney?
- 5 How do I make an EPA?
- 6 When does the power of an enduring attorney commence?
- 7 Can I register an EPA?
- 8 Can I resign as an attorney?
- 9 Can I revoke my EPA?
- 10 Are there other ways to end an EPA?
- 11 Contact us
Meaning of terms
A dictionary in schedule 3 defines particular words used in the POA Act.
In simple terms:
- An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.
- An attorney under an EPA means a person authorised to make decisions on behalf of another person.
- A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.
- Power for a matter means power to make all decisions about that matter.
- A person’s capacity for a matter means the person is capable of:
- understanding the nature and effect of decisions about the matter; and
- freely and voluntarily making decisions about the matter; and
- communicating the decisions in some way.
- A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.
What is an enduring power of attorney (EPA)?
- An EPA is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make decisions on the principal’s behalf.
- A valid EPA allows an authorised decision of an attorney to have the same legal effect as if the principal had made the decision (section 32 POA Act).
- An EPA is used to plan for a person’s future in case that person loses capacity to make certain decisions.
- An EPA is not revoked if a principal loses capacity for a matter.
- A general power of attorney differs from an EPA because a general power of attorney is revoked if a principal loses capacity. A general power of attorney is used while a person still has capacity to make decisions, for example if a person is overseas and needs to authorise an attorney to act on that person’s behalf.
Who can make EPA
- A person can make a valid EPA appointing an attorney if the person has capacity to understand the nature and effect of the EPA (section 41 POA Act).
- If a person does not have capacity to execute a valid EPA but needs assistance to make certain decisions, an application can be made to the Queensland Civil and Administrative Tribunal (QCAT) for guardianship and/or administration orders for that person (see GAA - Guardianship and Administration toolkit).
- If there is doubt about a person’s capacity, QCAT can make a declaration about whether or not that person has capacity to execute an EPA.
- A person cannot make an EPA if they do not have legal capacity.
Who can be an enduring attorney?
A person is only eligible to be appointed as an attorney under an EPA if:
- the person is at least 18 years; and
- the person is not a paid carer, health provider or a residential service provider for the principal; and
- for an EPA including financial matters, the person is not bankrupt or taking advantage of the laws of bankruptcy or similar legislation (section 29 POA Act).
A paid carer is someone who receives remuneration for services performed for the principal’s care (Schedule 3 POA Act). A person is not a paid carer for that purpose for receiving remuneration derived from:
- a carer payment or benefit from the Federal or State governments for providing home care for the principal (for example, a Centrelink Carer Allowance); or
- damages awarded by a court for gratuitous services performed for the principal’s care.
If a person does not have anyone suitable to be appointed as attorney, the person may appoint the Public Guardian and Public Trustee of Queensland as enduring attorneys for personal and financial matters, respectively.
How do I make an EPA?
There are a number of formal requirements for a valid EPA, including:
- the principal must have capacity to execute the EPA (section 41 POA Act);
- the EPA must be made in an approved form, by using either the EPA Short Form 2 or the EPA Long Form 3 published by the Queensland government, as the case may be;
- the EPA must be signed by the principal or an eligible signer (section 30 POA Act);
- the EPA must be signed and dated by an eligible witnesses (section 31 POA Act); and
- the EPA must be signed by the eligible attorney who accepted the appointment
(section 44 POA Act).
Strict guidelines apply for witnessing an EPA. A person witnessing an EPA must certify that the principal seemed to have the necessary capacity to execute the EPA and understood the nature and likely effect of that document.
There are also a number of important factors that a person should consider before making an EPA including, for example, choosing an attorney who:
- is an honest and trustworthy person;
- understands the principal’s wishes and health care needs, and would make decisions consistent with these as much as possible;
- is responsible with money and competent to make financial decisions;
- would seek and consider professional advice when necessary; and
- has the necessary skills to act in accordance with legal requirements.
It is highly recommended that a person obtains legal advice before making an EPA or accepting an appointment as enduring attorney.
When does the power of an enduring attorney commence?
- For personal matters (including health matters), an attorney’s power only commences when the principal loses capacity to make those decisions independently (section 33 POA Act).
- For financial matters, a principal can specify in the EPA when, and under what circumstances, an attorney’s power commences. For example, the EPA could specify that an attorney’s power commences immediately, or commences only when the principal is diagnosed by a doctor to have lost capacity to make financial decisions.
- If an EPA is silent about when a power for a financial matter commences, the attorney’s power commences immediately after the EPA is validly executed.
- If an attorney’s power for a matter depends on the principal having impaired capacity for that matter, a person dealing with the attorney may ask for evidence of the principal’s impaired capacity, for example a medical certificate (section 33(5) POA Act).
- If there are concerns about whether an attorney’s power has commenced, an interested person may apply to QCAT or the Supreme Court for a declaration about a principal’s capacity and about whether an attorney’s power has begun (section 115 POA Act).
Can I register an EPA?
- If an EPA authorises an attorney to act in financial matters, and the attorney would likely act in a transaction involving land in Queensland, the EPA must be registered in the Power of Attorney Register of the Titles Registry (section 60 POA Act).
- Only EPAs granting powers for financial matters can be registered. If an EPA relates only to personal matters, the EPA cannot be registered in the Titles Registry.
- It is recommended that the original EPA is kept by the principal in a safe place, and a certified copy of the EPA given to the attorney. The existence of an EPA can be proved by using a copy certified in accordance with section 45 POA Act.
- A principal should consider giving a certified copy of the EPA to trusted persons who should be informed of the EPA’s existence, such as the principal’s doctor, bank manager, lawyer, accountant and/or superannuation fund.
Can I resign as an attorney?
- While a principal has capacity for a matter, the attorney can resign as attorney for that matter by giving a signed written notice to the principal (section 72 POA Act).
- If a principal’s capacity for a matter is impaired, the attorney can only resign if authorised by QCAT or the Supreme Court (section 82 POA Act). In that case, the attorney should continue acting for the principal until new arrangements are put in place.
- If an attorney resigns, the EPA is revoked to the extent that it gives power to that attorney (sections 55).
Can I revoke my EPA?
- A principal can only revoke an EPA if the principal has capacity to make an EPA giving the same power (section 47 POA Act).
- Revocation of an EPA must be done in writing by executing the Revocation of Enduring Power of Attorney Form 6 published by the Queensland government.
- If a principal revokes an EPA, the principal must inform the attorneys of the revocation (section 46 POA Act).
- If an EPA is registered with the Titles Registry and is later revoked, the principal must also deregister the EPA by lodging a certified copy of the revocation form with the Titles Registry.
- It is recommended that a copy of the revocation form is provided to any party previously informed of the existence of the EPA, such as the principal’s doctor, bank manager, lawyer, accountant and/or superannuation fund.
Are there other ways to end an EPA?
A principal can expressly state in an EPA that the EPA will be revoked under specific circumstances (section 54 POA Act). For example, the EPA can state that it will be revoked if a specific purpose is achieved, or if the attorney is found to be in breach of certain duties.
An EPA is automatically revoked in the circumstances set out in the POA Act, for example:
- if the principal dies (section 5);
- if the principal gets married or enters into a registered relationship - unless the EPA states otherwise, the EPA is revoked to the extent that it gives power to someone other than the principal’s new spouse or registered partner (sections 52 and 52A);
- if the principal gets divorced or ends a registered relationship - the EPA is revoked to the extend that it gives powers to the principal’s divorced spouse or former civil partner (sections 53 and 53A);
- if the principal makes a new EPA - a previous EPA is revoked to the extent of any inconsistency (section 50);
- if an attorney dies - the EPA is revoked to the extent that it gives power to that attorney (section 58);
- if an attorney loses capacity for a matter - the EPA is revoked to the extent that it gives power to that attorney (section 56); or
- if an attorney becomes bankrupt or takes advantage of the laws of bankruptcy or similar legislation - the EPA is revoked to the extent that it gives power for financial matters to that attorney (section 57).
The information in this resource is for general information purposes only. If you would like help with a legal problem, you may be eligible for assistance from a LawRight service or clinic.
For more information about the help available, and the process for applying for help, please contact LawRight by:
|Telephone:||07 3846 6317|
|Fax:||07 3846 6311|
|Postal address:||LawRight, PO Box 3631, South Brisbane, Qld 4101|
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