Legal Matters: Enduring Power of Attorney (EPOA)

Andrew Bell joins Colin Balewski and Robyn Hyland on 4CRB for another insightful episode of Legal Matters.

Key Topics

• Validity Across States: Understanding how an EPOA signed in New South Wales applies in Queensland and why it’s recognised nationally.
• The Role of an Attorney: Exploring the responsibilities of the person you appoint, including managing health, financial, and personal decisions.
• When It Applies: The difference between immediate enactment for financial matters and activation upon lost capacity for health matters.
• Choosing the Right Person: Considerations around appointing a primary attorney, alternative attorneys, and having multiple people make decisions jointly or individually.
• Protections and Limitations: Discussing what an attorney cannot do (like changing your Will) and how the accountability system prevents elder abuse.
• Advanced Health Directives: Differences between an EPOA and an AHD, especially focusing on critical medical care directions.

Listener FAQ Highlighted In This Episode

Is a New South Wales Power of Attorney valid in Queensland?
In Australia, an EPOA is valid across state borders. However, keep in mind that a NSW Enduring Power of Attorney only covers financial matters. In NSW, health and personal matters are covered under an “Enduring Guardian” document, whereas a Queensland EPOA covers both. For more details, read our full FAQ on interstate EPOA validity .

When should I set up an EPOA?
An EPOA is valid for anyone over 18 years old. Given life’s unpredictability, it’s highly recommended to set it up early, especially if you have significant assets, engage in high-risk activities, or have specific medical preferences. Setting this up while you have capacity is critical because you cannot do so after capacity is lost.

What happens if I don’t have an EPOA?
Without an EPOA, the Public Trustee or someone appointed by QCAT (Queensland Civil and Administrative Tribunal) will be responsible for decision-making. This process can be lengthy and might result in someone who doesn’t understand your personal wishes managing your affairs. For more details on this process, read our FAQ on what happens without an EPOA in QLD .

Listen to the full discussion above.

[!WARNING] Don’t Wait Until It’s Too Late to Appoint an Attorney An Enduring Power of Attorney must be drafted and signed while you still have legal capacity. If an unexpected medical emergency or cognitive decline occurs before an EPOA is in place, your family will be forced to undergo a lengthy and stressful QCAT tribunal process to manage your finances or health.

Contact our Wills and Estates lawyers today to secure your EPOA and protect your future decisions.

Transcript

[Colin] I’d like to welcome to the studio, welcome to the microphone, Andrew Bell from Bell & Senior Lawyers.

[Andrew] Thanks Colin, thanks for having me back for our second live episode.

[Colin] We’ve got a wonderful topic today, we’re going to be talking about EPOAs. But first of all, we had a question from last week that you did a little bit of research on.

[Andrew] Indeed I did. Last week, Patricia had a question about if she had a New South Wales Enduring Power of Attorney and it was signed in Queensland, would that be valid? She said the banks had knocked her back on that. Our position: I’ve done some research and spoken to other lawyers: in Australia, lawyers are nationally recognised. So, I’ve been able to appear before the Supreme Court in the ACT with my Queensland practising certificate. The New South Wales law says that a lawyer, a barrister, or a solicitor can sign off on the EPOA, be the witness, etc., as long as the appropriate rules are followed. So it should be valid on that basis. In Australia, any EPOA is valid in every state of Australia. If you had one signed in New South Wales and you moved to Queensland, you can rely on it in Queensland.

[Andrew] She said the bank wasn’t letting her do it, so we’d actually need to have a look at the document to make sure it was signed properly. If someone came to me and asked to witness a New South Wales one, I’d probably put it on the Queensland form. The other thing with Enduring Powers of Attorney is that banks will often want to see the original rather than a certified copy. So that may have been the issue they had there as well.

[Andrew] She said the bank wasn’t letting her do it, so we’d actually need to have a look at the document to make sure it was signed properly. If someone came to me and asked to witness a New South Wales one, I’d probably put it on the Queensland form. The other thing with Enduring Powers of Attorney is that banks will often want to see the original rather than a certified copy. So that may have been the issue they had there as well.

[Colin] It sounds like there’s many layers to the onion. Let’s start with the very first layer: What is an EPOA?

[Andrew] An Enduring Power of Attorney is a legal document that allows you to appoint someone that you trust, or multiple people that you trust, as what we call your attorney. They’re not a lawyer like an American attorney: they’re actually someone who can represent you to make your financial, legal, and personal health decisions. You may decide that one person you want to do your financial decisions, and you might want a number of family members to make your health or personal decisions. By personal decisions, they mean not just if you’re in the hospital and what operation should be done, but also: do you need a wheelchair? Do you need help with Centrelink? Do you need help with living in an assisted care facility? Your attorney can help you do all of those things.

[Colin] So the next question would then be, well, when does your EPOA kick in?

[Andrew] For financial matters, you can decide it’s immediate or on a particular written event. So maybe you’re going away caravanning around Australia for six months and you want someone to be able to pay your bills? You could actually appoint your attorney in writing and say for the next six months, I’d like that attorney to be able to manage my financial affairs at home. For your health and personal matters: it’s once you’ve lost capacity.

[Colin] So that’s a good point. You can voluntarily enact it for financial reasons. But when it comes to medical, this word of “capacity” does come up. What is it?

[Andrew] Capacity is both a medical and a legal concept. But essentially, it means you’re unable to make decisions for yourself. The typical example used is someone has dementia and they’re not quite sure of where they are or what the implications of the decision they’re making are. But it also may be that you’re in hospital and you’re in a coma and you can’t do things: it’s being not able to make the decisions that you need to make in a proper way.

[Andrew] This is where an Enduring Power of Attorney can become very handy. It means that if something happens to you and you’re still alive and you can’t make those decisions, you’ve already set out how you want your affairs to be managed. Last week we talked about after you die, how you want your family to receive things and how your estate should be managed, which was your Will. Your Enduring Power of Attorney is what happens when you’re still alive. Once you’ve lost that capacity, though, you don’t have the ability to appoint a power of attorney or appoint who wants to make those decisions for you. So the key is you need to do it before these unexpected life events happen rather than afterwards.

[Colin] That’s a very good point. Let’s move on to what happens if you don’t have one and you are incapacitated. Who looks after you? Who makes the decisions on your behalf if you don’t have an EPOA?

[Andrew] If you don’t have an EPOA in place, then until someone goes to QCAT: which is the Civil and Administrative Tribunal for Queensland: and asks for an order and proves that you don’t have capacity and someone steps up and says “I want to do this,” then by default it would go to someone called the Public Trustee. That’s a Queensland organisation. They’re not your family: they don’t know you. They’ll try to make the best decisions on your behalf. Otherwise, until QCAT makes that decision, you’re in a bit of a legal gray area around who can access the money in your account, who can actually sign off on these various health care decisions or living arrangements or anything. Families try to do the best they can, but sometimes that can take quite a long time.

[Andrew] Typically, the ones that we draft, two doctors need to sign off to say that you’ve lost capacity and then that EPOA kicks in immediately. Your wishes, because you’ve planned this well beforehand, are adhered to.

[Andrew] You can review them and change them while you’ve got capacity. It’s our recommendation every couple of years that you still pull it out and check and make sure that the people that you said that you trusted to look after your affairs are still those people that you still want to do that going forward.

[Robyn] So Andrew, can you appoint more than one person, and what would you recommend?

[Andrew] Absolutely you can. Obviously, it depends on the people and the situations. Typically, if we have a husband and wife come in to do an EPOA, normally we’d have the other one as the primary attorney. However, people do get old and it can become overwhelming. So it is a possibility to appoint other people, either children, lawyers, other trusted people who are prepared to help. They can either be appointed as alternatives: so if the husband says “Look, I really can’t look after this at the moment, I’ve got enough on and I’m not sure I’m doing the right thing,” then they can appoint those alternative attorneys. Or they can do it in conjunction with them.

[Colin] So there can be a hierarchy or it can be a collaborative decision.

[Andrew] Both. You can either say that they must jointly make decisions or they can individually make decisions. You can determine that as part of how you set things up. But as I said, normally the standard ones that we would draft would say the partner makes the decision, otherwise there may be two children and they need to make those decisions jointly.

[Robyn] So Andrew, once a power of attorney is enacted, are there limits on what an attorney can do?

[Andrew] Absolutely. For financial matters, what they can do for you is they can access your bank accounts, they can pay your bills and expenses, they can buy and sell and manage property, they can sue people on your behalf. But there are things that they can’t do. They can’t make or change your Will, for example. They can’t make decisions after you die. They must make decisions in your best interests, which is very important. We do get very worried about elder abuse. One of the questions if you were going to get an EPOA a lawyer might ask is to make sure that you understand what’s going on and you’re doing it independently. If you request, you can make sure that they actually have to justify the decisions they’ve made. You could say every expense over $1000 needs to be sent to me every three months, so then there’s at least a paper trail so you can understand what’s going on.

[Robyn] What protections exist to prevent misuse or financial abuse?

[Andrew] It’s mostly that reporting angle. If people think that it’s being abused, they can go to QCAT and ask for the EPOA to be overturned. But I think for the majority of people, it’s about getting the right person that you trust and making sure that people are able to see what’s going on financially to make sure that they’re held accountable. [Robyn] Andrew, given the fact that we live on the Queensland-New South Wales border here, what are the differences between a power of attorney in Queensland as opposed to a power of attorney in New South Wales? [Andrew] In Queensland, as I said, they cover both health and financial matters, and they are nationally recognised. In New South Wales, an Enduring Power of Attorney is only for financial matters. However, you can have a guardianship document, an Enduring Guardian, which covers those personal and health matters. There’s also some legal nuances around who can sign them off. But essentially, the same rules apply. You must have capacity. In New South Wales, it must be a lawyer that signs it off, whereas in Queensland, you can get a JP to sign it off, but they need to make sure that you fully understand the ramifications of what you’re signing before you sign for that to be a validly enacted document.

[Robyn] And if people were to say live in New South Wales, make a power of attorney in New South Wales, and then move to Queensland? Would you recommend redoing your power of attorney in Queensland?

[Andrew] No, I don’t think I would. As I said, because they’re nationally recognised and they give very similar powers, as long as they appear valid, I wouldn’t change it immediately. Every five years or so, I’d recommend that you bring them out. There may be changes to legislation, there may be changes to how they apply and who they apply to. But at the moment, if you had a valid New South Wales EPOA and lived in Queensland, I don’t think I would get it refreshed.

[Andrew] We redid two last week that appeared to be 30 years old from Queensland. The language is very different, the forms are very different. If you wanted to take it to a bank, I’m sure they would not enact it straight away and would want to seek their own advice on an older document compared to something that’s on the prescribed form that’s using the modern language.

[Robyn] What age should someone take out an EPOA?

[Andrew] Well, an EPOA is valid from anyone who is over 18 years old. They act indefinitely, so there’s no reason to delay getting an EPOA. The more assets you’ve got, the more likely you think that it is that you may be in decline. We have people going overseas doing extreme sports type things who are worried that they might injure themselves and need someone to make decisions on the way back. I’ve done EPOAs from 18-year-olds to 80-year-olds.

[Andrew] We recently had an expectant mom. She wanted to make sure the husband could make decisions for her when she’s giving birth if she’s not able to make those decisions. Automatically, your spouse doesn’t necessarily have the power to make health decisions for you.

[Andrew] Hospitals do have powers in place. There’s also something similar to an EPOA called an Advanced Health Directive. However, they will try and work out things, and if they can’t find people quickly and a decision needs to be made quickly, then they’ll delegate that to a senior person in the hospital to make those decisions. That may not align religiously or ethically to the way that you want to be treated.

[Robyn] Once you’ve made your EPOA, where should you store it?

[Andrew] EPOAs, like Wills, are some of the few documents where an original is required. An original “wet ink” signature. Our recommendation: we’ll give you a copy of the Will, put a fridge magnet on the fridge telling people where the Will is; same with the EPOA. Most people will accept a certified copy, but not everybody. But if that original disappears, then the power behind that original is lost. So we would normally recommend if you went to a solicitor’s firm, that the solicitor keep it in their safe. They give you a scanned copy of it, they give you a certified copy of it so you can keep it at home if you need to give it to someone or share it with someone, but if anyone actually needs to double-check that original, then they can get the solicitor.

[Robyn] Andrew, what are some of the biggest mistakes people make when they are setting up an EPOA?

[Andrew] A lot of people trying to do it themselves without experience of the legal conditions and then potentially not having them witnessed properly. It’s very important that it’s very clear what the principal, the person signing the EPOA, what the principal’s wishes were. Then it’s very important to understand when it kicks in, when it becomes available. Next, it needs to clearly identify the parties. And then they need to demonstrate some sort of proof that they actually understood what they were signing when they signed it. If you can’t do any of those things, then it’s liable to be challenged in the future.

[Andrew] The other thing is not quite understanding what their true intentions are. You’ve got to actually have some time to think about what are the guidelines that you want your attorney to do. Do you want to be living in dignity? Do you want to live in your own home? What are the guidelines that you want to give your attorney as the little checkbox?

[Robyn] And are they conversations that families should be having around this when people are looking to appoint their power of attorney?

[Andrew] Absolutely. I think blindly appointing people is not a good idea. Just because you trust your son and you think that they’d make a great attorney, surprising them when in the future they need to make all these decisions, they may say “Mom, I can’t make those decisions for you. I don’t think I’m the right person, I think you should have picked someone else. Or I want to make these decisions, but I don’t even know how to do that, I don’t have the right skills, or I’m not sure what you want.” So we recommend that people come in with the proposed attorneys to meet with us so that everyone involved in the process understands what their role would be.

[Andrew] Also, people if they’re aware that they’re nominated as an attorney can then be involved in any future decisions. We find it difficult when people move overseas who are nominated as an attorney. It may be found best that that person is an attorney, but they’re not necessarily the sole attorney to make decisions, but they need to be involved. They may protect you against some elder abuse if you pick someone you don’t know as well as your Gold Coast attorney, but they need to share the decision-making with the person who’s overseas. Because it might be very difficult for the person in New Zealand to get to the bank or sign things off or do things in a timely manner.

[Robyn] Andrew, what happens if someone was to have a power of attorney in place, they lose capacity, and then the attorney decides that they don’t want to do it or they can’t do it?

[Andrew] Well, again, if we had alternative attorneys, it could go to the next one. Unfortunately, otherwise, it probably goes to that body I talked about before, the Queensland Public Trustee.

Caller Caroline: Hello Andrew. Could you please explain a Health Directive?

[Andrew] An Advanced Health Directive, or an AHD, is similar to a power of attorney. It gets logged with Queensland Health. It needs to be signed off with your doctor, so you can talk about treatment options, etc. And it has similar effects to the health component of a power of attorney. An Advanced Health Directive, like an Enduring Power of Attorney, also kicks in when you lose capacity. But it’s more medically focused on the medicos being able to look at it directly and make the decisions, maybe in consultation with your nominated person or maybe just following your written instructions directly. They’re most commonly used for “do not resuscitate” type orders, where if you’ve decided you don’t want people to go to heroic lengths to resuscitate you, an Advanced Health Directive that nominates that is very helpful for the healthcare workers to look at.

[Colin] The Enduring Power of Attorney has a finance component, a health and personal matters component. The Advanced Health Directive only has the health component to it and requires different procedures to enact.

Disclaimer: This is an edited transcript of the live radio broadcast. To hear the full unedited version, or to listen to callers’ questions, please listen to the audio file provided at the top of the page.