Does a power of attorney have to be filed with the court

Inhaltsverzeichnis Show

General power of attorney
Enduring power of attorney
How to make an enduring power of attorney
Cancelling your enduring power of attorney
What an attorney must do
If your attorney behaves improperly
More information

A power of attorney is a legal document, which gives, one person (the donee or attorney) the power to act for another (the donor) in some circumstances.

For example, you may wish to sell a property while you are overseas. The donee would be able to act for you as a result of the power of attorney.
It is often used for a specific purpose and a fixed period of time.

There is no register for powers of attorney in Western Australia. You will need to make sure that all people who need to know about the power of attorney are given a copy.

When can a power of attorney be used?

A power of attorney may be used for any purpose that can legally be given to someone else. Some situations where a power of attorney can be used are:

buying and selling property (if the property is not held on trust for someone else). For example, while you are on holidays
operating a bank account,. For example, if you are in hospital
voting at meetings.

What a power of attorney can’t be used for

Some things can't be done for you by someone else through a power of attorney, these include

making a will
swearing or affirming your affidavit
anything prohibited from being delegated by law.

Are there special requirements for dealing with land?

Yes. Where a donee intends to be involved in a transaction about land and it will be recorded at Landgate the power of attorney must be lodged at Landgate.

Landgate requires an original copy so two originals should be signed.

If a power of attorney is lodged at Landgate it should be done within three months of signing the document. If you do not lodge the power of attorney within three months, the lodgement process becomes more complex and there can be extra delay and expense when the attorney is dealing with your property.

What are some of the key factors to consider in deciding who to give your power of attorney to?

Some of the things you should consider are:

Do you trust the person?
Are they reliable?
Do they have the time to do what you may need done?
Does the person have the skills and knowledge to do what you want done?
Is there any conflict between your interests and theirs?

Be careful who you appoint as there is the potential for the power to be abused. You may want to get legal advice so that you understand the risks in giving a power of attorney.

What is the main danger in having a power of attorney?

The main potential danger is that while the donee has your power of attorney, another party dealing with the donee may be able to enforce an arrangement against you which may be to your disadvantage. Whether they can do this depends on the facts.

Does a power of attorney have to be witnessed?

Yes. A power of attorney must be signed before an independent adult witness. The witness verifies that the donor signed the document on the date specified.

The legal requirements are different for trustees. Get legal advice.
There are also special requirements for a power of attorney dealing with land.

What if the person was mentally well when they made the power of attorney but now is not well?

A power of attorney is not valid once the donor loses legal capacity, eg because of an illness.

More information

Landgate for policy and procedure guides for land title registration.

Reviewed: 25 May 2020

A power of attorney allows you (the principal) to appoint someone you trust (i.e. an attorney or attorneys) to make decisions for you during your lifetime.

An attorney can make decisions about:

Personal (including health) matters, which relate to personal or lifestyle decisions. This includes decisions about
- support services
- where and with whom you live
- health care
- legal matters that do not relate to your financial or property matters.

Financial matters, which relate to decisions about your financial or property affairs including
- paying expenses
- making investments
- selling property (including your home)
- carrying on a business).

There are 2 types of power of attorney:

general power of attorney, which ends if you lose capacity
enduring power of attorney, which continues if you lose capacity.

General power of attorney

A general power of attorney allows you (the principal) to appoint someone you trust (an attorney) to make decisions about financial matters for you while you have capacity to make decisions about those matters.

You may use a general power of attorney to appoint an attorney for a specific period or event (e.g. if you are going overseas and need someone to sell your house or pay your bills).

It’s used while you can still make your own decisions and ends once you lose capacity to make those decisions (unless it is a power of attorney given as security).

Print and complete:

Enduring power of attorney

An enduring power of attorney allows you (the principal) to appoint someone you trust (an attorney) to make decisions about personal (including health) matters and/or financial matters for you.

An attorney for personal matters (including health matters) can only make decisions for you when you do not have capacity to make those decisions.

You can decide when your attorney’s power to make decisions for financial matters begins, including:

when you no longer have capacity to make those decisions
immediately
from a specific date
in particular circumstances or occasions.

How to make an enduring power of attorney

Who can make an enduring power of attorney

To make an enduring power of attorney, you must be 18 or older and have capacity to understand the document you are signing and the powers it gives.

This means you need to understand:

that you may specify or limit the power to be given to your attorney, and instruct your attorney about the exercise of the power in the enduring power of attorney
when the power begins
that once the power begins, your attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney)
that the power continues even if you lose capacity
that you may revoke the enduring power of attorney at any time while you have capacity to do so
that if you lose capacity (and are unable to revoke the enduring power of attorney) you are effectively unable to oversee the use of the power.

You must also be capable of making the enduring power of attorney freely and voluntarily—not due to pressure from someone else.

Your enduring power of attorney must be signed by you in the presence of an eligible witness.

In signing the enduring power of attorney, the witness is certifying that you appeared to have capacity to make the enduring power of attorney.

To find out more about the capacity to make an enduring power of attorney, see section 6 of the capacity assessment guidelines.

Preparing to make your enduring power of attorney

Before you complete an enduring power of attorney form, read the enduring power of attorney explanatory guide. Consider who you want to appoint and talk to them.

An enduring power of attorney is a legal document that can significantly affect your legal rights.

You should seek independent legal advice before completing the form.

Choosing your attorney

You should choose your attorney(s) carefully.

Unfortunately, attorneys may mismanage their role. This could include using your money to pay their own expenses or selling your assets and keeping your money for themselves. Only appoint people you trust to look after your affairs.

To be eligible to be an attorney, a person must:

have capacity to make decisions they are appointed for
be 18 or older
not be
- your paid carer or not have been your paid carer in the past 3 years. (A paid carer is someone paid a fee or wage to care for a person, but not someone receiving a carer’s pension or benefit)
- your health provider
- a service provider for a residential service where you live
- bankrupt or taking advantage of the laws of bankruptcy, if appointed for financial matters.

Refer to pages 7–8 of the explanatory guide for more information to help you choose your attorney(s).

You can appoint multiple attorneys—but you can only appoint a maximum of 4 people who must agree on all decisions (joint attorneys).

If you do appoint multiple attorneys, you will need to decide how they exercise their power (e.g. jointly, severally, by a majority, successively or alternatively). Refer to pages 10–11 of the explanatory guide for more about appointing multiple attorneys.

If you don’t have anyone to choose as your attorney

If you don’t feel confident that you have anyone suitable in your life to take on the responsibilities of an attorney for personal (including health) matters, you can appoint the Public Guardian.

Read more about appointing the Public Guardian for personal matters.

You can also appoint the Public Trustee as your attorney for financial matters. You should contact the Public Trustee before appointing them to act as your attorney. Learn more about the Public Trustee of Queensland.

Another option is appointing a trustee company as your attorney for financial matters.

Choose the right form

There are 2 forms you can use to make an enduring power of attorney. Download a free copy of the forms from the links provided here.

Use the enduring power of attorney—short form (form 2) to appoint either:

attorney(s) for personal (including health) matters only
attorney(s) for financial matters only
the same attorney(s) for both personal (including health) matters and financial matters.

Use the enduring power of attorney—long form (form 3) to appoint different attorneys for personal (including health) matters and for financial matters.

Paper copies are available to purchase from various newsagents and stationery suppliers throughout Queensland.

You could also print a copy of the forms at your local library or access a print on demand service.

Completing the document

Refer to the enduring power of attorney explanatory guide while you complete the form. It steps you through the questions and will give you useful information, practical examples, hints and tips.

You will need to sign the form in the presence of one of these witnesses:

a justice of the peace (JP)
commissioner for declarations
notary public
lawyer.

Once you and the witness have signed the document, your attorney(s) must sign it to accept the appointment. Your attorney(s) do not have to do this immediately; however, they must sign it before they can begin making decisions on your behalf.

What to do with your completed enduring power of attorney

You do not have to register your enduring power of attorney anywhere.

However, if your attorney(s) need to deal with land in Queensland on your behalf, your enduring power of attorney must first be registered with the Queensland Titles Registry by lodging a request to register power of attorney (form 16) together with a single-sided certified copy of the enduring power of attorney. Be aware that once registered with the Titles Registry, an image of the enduring power of attorney will exist on a publicly searchable register.

You should:

keep the original in a safe place
give a certified copy to your attorney(s), doctor, other health provider(s), bank or lawyer
let your close family and friends know that you have made an enduring power of attorney and where to find it.

You should review your enduring power of attorney if your personal circumstances change.

Cancelling your enduring power of attorney

You may revoke (cancel) your enduring power of attorney at any time while you have capacity to do so.

Use the revocation of enduring power of attorney (form 6) to revoke your enduring power of attorney. If you revoke your enduring power of attorney, you must take all reasonable steps to advise all of your attorneys that it has been revoked.

If it had been registered with the Queensland Titles Registry, you should also register your revocation of the enduring power of attorney by lodging another request to register power of attorney (form 16) , along with a single-sided copy of the revocation of enduring power of attorney (form 6) .

To learn about other circumstances when your enduring power of attorney may be revoked or cancelled, see page 19 of the explanatory guide.

What an attorney must do

An attorney has important legal duties and obligations they must comply with.

It is strongly recommended that a person seeks advice from a professional (e.g. a lawyer) when considering whether to accept appointment as an attorney.

These factsheets explain more about the duties and obligations of attorneys in Queensland:

More information can also be found on pages 21–24 of the enduring power of attorney explanatory guide.

If your attorney behaves improperly

If your attorney does not comply with their duties and obligations, the Public Guardian can investigate them and the Queensland Civil and Administrative Tribunal (QCAT) can remove them as your attorney.

The attorney could also face the following consequences:

criminal liability—failing to act honestly and with reasonable diligence as your attorney is a criminal offence
paying compensation—QCAT or the Supreme Court can order your attorney or former attorney to compensate you or your estate for any loss caused by their failure to comply with their obligations
accounting for profits—QCAT or the Supreme Court can order your attorney or former attorney to account for any profits they gained as a result of their failure to comply with their obligations
other remedies against your attorney—QCAT or the Supreme Court can make other orders against your attorney or former attorneys, including requiring them to perform certain actions (e.g. producing records and audited accounts).