Making a Power of Attorney in Queensland

Transcription

1 Making a Power of Attorney in Queensland What are Powers of Attorney? Powers of Attorney are legal documents by which a person (the principal) may appoint another person (the attorney) to make decisions on the principal s behalf. The power to make decisions is exercisable by an attorney at a time when or circumstance in which or occasion on which the power is exercisable (i.e. the power may commence immediately or upon the occurrence of a particular date or event). What types of Powers of Attorney are permitted? In Queensland, a principal is able to make: 1. A General Power of Attorney; and 2. An Enduring Power of Attorney. What is a General Power of Attorney? This is a document by which the principal appoints the attorney/s to do anything that the principal may do other than exercise a power for a personal matter and may provide terms or information about exercising the power. This may include the attorney making financial and legal decisions on the principal s behalf. General Powers of Attorney are often used to give the attorney specific powers for a fixed period of time. Multiple attorneys may be appointed and attorneys may act jointly/severally or by a majority if there is more than one. The power may be limited (i.e. to a particular transaction such as signing a contract for the purchase or sale of property) or unlimited to enable the attorney to make financial or legal decisions on the principal s behalf. An attorney appointed pursuant to a General Power of Attorney is unable to make decisions relating to a personal matter on behalf of the principal (i.e. an attorney

2 cannot make a Will for the principal or act as an attorney for a director of a company). How long does the General Power of Attorney remain operative? The General Power of Attorney remains in force until: It is revoked by the principal; It is revoked by the attorney; The attorney becomes bankrupt or insolvent or capacity is impaired or dies; The principal dies; or The principal s capacity is impaired. Can I revoke the General Power of Attorney? The appointment of an attorney may be revoked by: A term contained in the General Power of Attorney (i.e. if the power is to be exercised by a particular date after which date the power lapses); or Written revocation. The principal must take reasonable steps to inform their attorney that the power has been revoked and if the power of attorney documents has been registered in the power of attorney register, to deregister it. Want is an Enduring Power of Attorney? This is a document by which the principal appoints the attorney/s to do anything that the principal may do themselves including making decisions concerning financial or personal matters and may provide terms or information about exercising the power. The powers may include permitting the attorney to make financial and legal decisions on the principal s behalf. An Enduring Power of Attorney differs from a General Power of Attorney as the appointment of the attorney continues to operate even if the principal has impaired capacity to make decisions. Whilst it is always important to choose attorneys wisely, the importance of choosing the right attorney is greater with an Enduring Power of Attorney. This is because the powers held by the attorney continue even if the principal has impaired capacity. The principal may be unable to monitor the actions of the attorney in these circumstances. How do I make an Enduring Power of Attorney?

3 The document must be: In the form prescribed by the legislation; Signed by the principal or on the principal s behalf (and in the presence of the principal); and Signed and dated by a qualified witness. The qualified witness must also sign a certificate stating that the principal signed the document in the presence of the witness and that the principal appeared to have the capacity to make the document. Can I appoint more than one attorney? More than one attorney may be appointed by the principal to act in a number of different capacities (i.e. jointly/severally or as a majority when many attorneys are appointed). It is advisable to have default attorneys in case the first nominated attorney cannot accept the role. In our experience it is advisable to have at least two attorneys acting jointly on behalf of a principal at all times. When is an attorney s power exercisable? An Attorney may make decisions for a principal pursuant to an Enduring Power of Attorney: At a time when or circumstance in which or occasion on which is specified in the Enduring Power of Attorney document (i.e. when the principal has impaired capacity); Immediately (i.e. when the document is made); and Powers for personal matters are exercisable only once the principal has impaired capacity. Where the attorney s powers for financial matters are to commence on a particular event occurring proving the principal s loss of capacity may sometimes be difficult. Financial and other institutions may require regular proof of the principal s continued impaired capacity when relying upon the attorney s powers (i.e. doctor s report). How long does the Enduring Power of Attorney last?

4 The document continues to operate in full force and effect notwithstanding the principal s impaired capacity. The Enduring Power of Attorney may be revoked either by a later Enduring Power of Attorney document to the extent of any inconsistencies or by the principal revoking the Enduring Power of Attorney. As discussed above, the principal must take reasonable steps to inform the attorney of the revocation and if the document has been registered under the Land Title Act 1994, deregister it. The document will otherwise continue in full force until it has been revoked by the principal or by the attorney. Other factors that may effect the operation of the document are: The principal s marriage or divorce, entering into or termination of a registered relationship; If the document is revoked according to it s terms (i.e. if the Enduring Power of Attorney is limited in some manner); If the attorney becomes bankrupt or insolvent; If the attorney becomes a person with impaired capacity; If the attorney resigns (this is possible in limited circumstances); If the attorney dies; If the attorney becomes a paid carer or health care provider; or If the attorney has been removed by Supreme Court of Queensland. More Information It is important to note that the information contained in this Fact Sheet is general in nature and every family circumstance is different. It is therefore important to obtain specialist advice prior to making a decision to prepare a General or Enduring Power of Attorney. If you would like to discuss your estate planning, please contact our Wills & Estates specialist, Jarrad Mobbs. Authors

5 Jarrad Mobbs Phone: jarrad.mobbs@bnlaw.com.au