Choosing an attorney

An attorney is somebody who will make decisions for you if you are no longer able to make decisions for yourself. Your attorney’s decisions will have the same legal force as if you had made them yourself, so they must be capable of making decisions for you and respect your wishes.

Your attorney does not need to be a professional or a lawyer. You may select a relative, friend, a professional person (such as your accountant) or someone else you trust and believe has the abilities to carry out your wishes when you can no longer make decisions for yourself.

Your attorney must be over 18 years, and not a paid carer such as a health provider, nurse or home help. A person receiving a carer’s pension is not regarded as a paid carer.

You do not need to pay your attorney unless you appoint a professional person or an organisation to act as your attorney for financial matters.

You should be very careful who you select. Treat an enduring power of attorney with the same care as your Will. Remember you are giving another person total control over your assets, plus the ability to make personal decisions regarding your health and accommodation.

Appointing an attorney does not stop you from continuing to make your own decisions while you are capable. During this time, your attorney must act on your instructions.

The powers of your attorney end with your death or if you decide to revoke them.

Personal matters

A personal matter is a matter relating to a person’s health or welfare. Examples of personal matters include:

• where a person lives
• education
• legal matter
• health care matters.

For personal matters, including health care matters, consider a family member or a close friend who understands your personal views and health care needs. For personal matters, your attorney’s power begins only if you become incapable of making decisions.

Financial matters

A financial matter is a matter relating to a person’s finances or property. Examples of financial matters include:

• paying debts
• carrying on a business
• making investments.

For a financial attorney, consider someone who is responsible with their own money. If your financial affairs are complicated or you have a lot of money or property, you may prefer to appoint a professional person like an accountant or an organisation such as the Public Trustee or a private trustee company.

For financial matters, your attorney’s power begins whenever you want. You can choose to give your attorney power immediately or at a particular time. However, if you don’t specify a time, your attorney can make decisions on your behalf straight away. If you name a particular time and you lose capacity to make decisions before that time, then the enduring power of attorney begins at the time you lose capacity to make decisions.

You may limit an attorney’s power and instruct them about exercising the power. For instance, you might instruct your attorney to make financial decisions for you only after a certain event or at a specific time.

Appointing more than one attorney

You may appoint someone as your attorney for financial matters and another as your attorney for personal matters, or you can appoint two or more attorneys for each matter.

To avoid any conflict, you should appoint people who you know will work well together for your best interests. There are different ways attorneys can make decisions, so it is important to also consider things such as if you want your attorneys to make each decision together or if you want one attorney to act only when the other is no longer able to act for you.

If you have not appointed an attorney

If you have not appointed an attorney and health care decisions have to be made on your behalf, your statutory health attorney makes health care decisions for you. This is a person close to you, such as your spouse or a family member, who is available (and culturally appropriate) to consent to your health care. You do not have to sign any documents to officially appoint a statutory health attorney because this person automatically fulfils this role when necessary.

Your family or a friend may be able to make some other decisions informally, for instance, arrange Meals on Wheels, arrange other services such as personal care, or if are unable to cope at home alone, transfer you to more suitable accommodation.

However, if formal authority for decision-making is needed or if disagreements arise, your family or friend may apply to the Queensland Civil and Administrative Tribunal (QCAT) to have someone appointed to act on your behalf. A guardian may be appointed for personal and health matters only. An administrator may be appointed only for financial matters.

What happens if you don’t know someone you can make an Enduring Power of Attorney?

The Adult Guardian can be appointed to look after the rights and interests of adults who are unable to make personal and/or health decisions for themselves. However, this requires the Queensland Civil and Administrative Tribunal (QCAT) to appoint the Adult Guardian as their guardian in the following circumstances:

• if there is evidence that a person has impaired decision making capacity and they have no family, relatives or friends who can act as guardian and make decisions on their behalf
• where the adult has impaired decision making capacity and has been abused, neglected or exploited
• where the adult has impaired decision making capacity and there is such serious conflict in the family about the decisions to be made for the adult that QCAT decides that it is best for someone outside the family or supportive network to act as the adult’s guardian.

Appointing the Adult Guardian as your personal attorney

You need to complete an additional form called a personal profile form so you can explain why you regard the Adult Guardian as a last resort and why you want to appoint the Adult Guardian.

You also need to include contact details of friends, family, your doctor, other service providers (such as nursing or meals services) and relevant professionals (such as your accountant or solicitor). If the Adult Guardian is satisfied that the appointment is a last resort, they will sign the enduring power of attorney.