"Who is who" in these FALQs
The person making the appointment under a Power of Attorney document is referred to as the "principal".
Similarly, the person being appointed is referred to as the "attorney".
For the purposes of these frequently asked legal questions, we use the word:
- "principal" to refer to the person making the appointment; and
- "attorney" for the person being appointed.
What things are attorneys not permitted to do during their appointment period?
There are a number of things that an attorney in Australia is not permitted to do during their appointment period — for example,
- may not exercise any trusts, powers or discretions vested in the principal unless provided for in the relevant trust instrument;
may not perform any non-delegable duties of the principal (such as the role of company director — see Question below);
- may not make a Will for the principal;
- may not swear an affidavit in the name of the principal; and
- may not pass on their powers or duties to another person.
- Also as you can read here, there is doubt about whether an attorney can make or renew a binding death benefit nomination under an SMSF.
Can a director of a company appoint an attorney under a Power of Attorney to act in that role on their behalf?
No, a director anywhere in Australia is not able to appoint an attorney to act on their behalf as a company director.
However, this question is often confused with a company's ability to appoint an attorney to act on behalf of a company, which is allowed
and provided for under many company constitutions.
Can an attorney make or renew a binding death benefit nomination under an SMSF?
Possibly. The law around this issue is unclear throughout Australia.
The Superannuation Complaints Tribunal has held that it is possible for an attorney to make a binding death benefit nomination on behalf of a
Although there are no laws expressly prohibiting the attorney from making such a nomination, many legal practitioners advise against doing so
because of the associated risks. If an attorney makes a binding death benefit nomination in favour of a certain person or persons on behalf of
the principal, then the attorney may find themselves subject to a claim by a family member or other person interested in the principal's
affairs who may disagree with the nomination.
Because of these risks, many practitioners are of the view that it is a decision which - as with the execution of a Will and the role of a company director - is so personal in nature that it should only be executed by the principal themselves.
Should I consult my health professional when making a medical Power of Attorney?
It is a good idea to consult your health professional when making any Power of Attorney about your future medical treatment. Your health professional can help by clarifying medical terms, and giving you information about various medical conditions and the advantages and disadvantages of various treatments.
In Queensland, your health professional cannot act as a witness to you signing your Power of Attorney.
What happens if an attorney dies or lacks decision making capacity during their period of appointment?
In Queensland, if an attorney dies or lacks decision making capacity during their period of appointment, then their appointment is automatically revoked and will no longer have effect.
If that happens and there are no attorneys able to act under the Power of Attorney document, then the role of attorney is vacated and the principal is left without an attorney.
What is the maximum number of attorneys a principal can appoint at one time using Cleardocs?
A principal can appoint between 1 to 4 attorneys. If more than one attorney is appointed, then the principal can authorise their attorneys to make decisions:
- jointly (all attorneys must agree on all decisions);
- severally (any one of the attorneys may decide); or
- by a majority (more than half of the attorneys must agree on all decisions).
Does revoking one or more attorney's power also revoke the power of any remaining joint attorneys?
Due to Queensland's strict form requirements, we recommend that if a principal intends to revoke one or more attorney's power but wishes to retain the remaining attorney's power, that a new Enduring Power of Attorney document is signed to override the previous document.
If my spouse is my attorney and we get divorced, then does the Power of Attorney arrangement automatically end?
Yes, per section 53 of the Powers of Attorney Act 1998 (Qld), if a principal in Queensland has their spouse as their attorney and they get divorced, then the Power of Attorney will be automatically revoked.
When are attorney appointments automatically revoked?
An attorney's powers under an Enduring Power of Attorney document in Queensland will be revoked:
- if the attorney gives written notice of revocation to the attorney
- if the Queensland Civil Administration Tribunal (QCAT) removes the attorney
- For Financial, if the attorney becomes bankrupt
- For Personal, if the attorney becomes a care worker, a health provider or an accommodation provider for the principal of an Enduring Power of Attorney
- if the attorney dies or lacks decision making capacity
- if the principal dies
- if the principal executes a later Enduring Power of Attorney document
What happens if my family or decision-makers disagree with my wishes under my Power of Attorney?
Generally, any specific wishes you have made in your Power of Attorney document will take priority over the wishes of anyone else —
including your family and your appointed decision-makers.
Maddocks recommends that you discuss your wishes with your family members and close friends as appropriate. By doing so, you will give them an
understanding of your wishes and the reasoning behind them. Usually, this helps make it more likely that they will support your wishes if your
Power of Attorney needs to be followed.
Can I ask someone to sign a Power of Attorney for me?
In Queensland, the law does allow for Enduring Power of Attorney documents to be signed by a person other than the principal at the direction of the principal.
The Cleardocs interface and document package assumes the principal can sign the document and only allows for this scenario.
What are the requirements for witnessing the signing of an Enduring Power of Attorney in Queensland?
You need to arrange for the Enduring Power of Attorney document to be signed by:
- the principal, who will sign the Principal's Declaration;
- a witness, who will sign the Principal's Declaration and Witness Certificate; and
- the attorney(s), who will sign the Attorney's Statement of Acceptance.
The witness must be a:
- justice of the peace (JP);
- commissioner for declarations;
- notary public; or
Queensland law does not currently permit other types of witnesses.
The witness cannot be:
- the principal;
- one of the attorneys listed in the Enduring Power of Attorney;
- related to the principal or an attorney; or
- a paid carer or health provider for the principal.
What are 'financial matters' under an Enduring Power of Attorney for Financial matters?
An attorney under an Enduring Power of Attorney for financial matters, may act on behalf of the principal for any matters relating to the principal's financial or property affairs.
This includes any legal matters that relate to the principal's financial or property affairs but is subject to any limitations that may be set out within the Enduring Power of Attorney document.
Examples of financial matters include:
- paying rates, taxes or insurance premiums of the principal;
- making investments;
- carrying on any trade or business of the principal;
- dealing with land for the principal;
- making money available to the principal, such as withdrawing and depositing funds from a bank account; and
- paying any debts of the principal.
What are 'personal matters' under an Enduring Power of Attorney for Personal matters?
An attorney under an Enduring Power of Attorney for personal matters will be able to act on behalf of the principal for matters relating to the principal's personal, lifestyle and health affairs.
This includes any legal matters that relate to the principal's personal, lifestyle and health affairs but is subject to any limitations that may be set out within the Enduring Power of Attorney document.
Examples of personal matters include:
- whether the principal can work;
- where the principal is to live and with whom;
- daily living issues such as diet and dress;
- who the principal is to associate with; and
- health care matters, including most medical treatments, procedures and services to treat both physical and mental conditions. When you are nearing the end of your life, health care also includes treatments aimed at keeping you alive or delaying your death (life-sustaining treatments).
Can an attorney under an Enduring Power of Attorney for Financial matters give gifts or donations on the principal's behalf?
Attorneys can only use the principal's money or other property to give gifts and donations if it is of the nature of gift or donation the principal would have given when they had capacity of the nature of gift or donation the principal might have been expected to have made.
Such gifts and donations must be of reasonable value, taking into consideration all of the circumstances, including the principal's financial position.
Your attorney must keep written records of any gift made and must specify the amount of the gift and to whom the gift has been made.
What is 'decision making capacity' for the purposes of Enduring Power of Attorney documents?
A principal must have decision making capacity in order to create a legally effective Enduring Power of Attorney document.
Similarly, an attorney must have decision making capacity when they accept their roles and throughout the period that they are acting as an attorney or alternative attorney.
Some of the factors to consider in determining whether a person has decision making capacity includes an ability to:
- understand the information relevant to making a decision;
- understand the effects of making such a decision;
- retain such information to the extent necessary to make a decision;
- use or weigh that information as part of the process of making the decision; and
- effectively communicate their decision.
It is assumed that a person has decision making capacity unless there is evidence to the contrary. If you are unsure whether the principal, or an attorney has decision making capacity, please seek advice from a medical practitioner.
If a person is unsure whether the principal has capacity, they can seek a report from a medical practitioner or a declaration from the Queensland Civil and Administrative Tribunal (QCAT) or the Supreme Court.