Power of Attorney

What is it and how can it help you?

We are not always in a position to make decisions when we need to. The power of attorney is an idea that arose within the legal system as a way around this problem.

The Queensland Government has introduced new legislation to make the idea more workable.

What is meant by a 'power of attorney'?

A power of attorney generally means a formal agreement giving someone else the power to make decisions on your behalf. It is a legally recognised way of arranging for someone to represent you - act as your proxy - if for some reason you are unable to act for yourself.

It works like this:

• You sign a form giving 'power of attorney' to someone of your choice.
• You specify the types of decisions that the person you choose (your attorney) will make.
• Your attorney agrees to the appointment by signing the acceptance section of the form.
• Your attorney can then act on your behalf if necessary.
• The decisions that your attorney makes for you have the same legal force as if you had made them yourself.

What types of decisions would my attorney make?

You can give your attorney power to make decisions about:

• personal matters (including health care); and/or
• financial matters.

You can also give instructions to medical staff about your future health care by completing a special form known as an Advance Health Directive.

Why give someone this power?

Giving someone this power is actually a way of making sure that your wishes will be followed, no matter what happens. Your specify the sorts of decisions to be made, and you choose someone you trust to carry them out.

Why should this be necessary?

There may come a time when, for some reason, you are unable to make decisions about things that concern you - for example, you may not be on the spot when financial decisions have to be made, you may be too ill to make your own medical decisions, or an accident could leave you with disabilities.

At times like these, it is far better to be prepared. You can feel more confident if you have chosen someone who understands your wishes and is legally bound to respect them.

How has the law changed?

Until recently a Power of Attorney was only valid while you were capable of managing your own affairs. If you became incapable for any reason, your attorney's power would cease. Obviously this could be very awkward if your attorney was involved in some important transaction for you at the time.

So the Queensland Parliament created the enduring power of attorney , which simply means that the power does not cease if you become incapable of managing your own affairs.

New Legislation now extends this enduring power of attorney so that it:

• covers both personal/health and financial matters;
• allows you to appoint more than one attorney;
• allows you to specify when the power will begin and exactly what areas it will cover;
• gives clear guidance to your attorney if you are unable to supervise the decisions yourself.

A special extension of this legislation is the Advance Health Directive , which allows you to make arrangements about your future health care in case the time comes when you are unable to speak for yourself.

When should I appoint an attorney?

It's wise to appoint an attorney now , before an urgent matter arises.

However, there are certain times when it is particularly important to do so. For example:

• you should appoint an attorney for financial matters if you expect to be away from home for some time or if you will not be available when financial decisions have to be made;
• you should appoint an attorney for both financial and personal/health matters if you expect to be admitted to hospital in the near future, or if you have a condition that is likely to affect your ability to make decisions. If you have special medical requirements, you may also wish to complete an Advance Health Directive.

What would happen if I could not make decisions myself and I did not have any attorney to act for me?

You would have no opportunity to make your wishes clear. Someone would have to step in and take responsibility.

• Financial decisions would be made by the Public Trustee.
• Health matters would be decided by your "statutory health attorney". This is someone close to you who would become your attorney "by default" (that is, the person your doctor would ask to make decisions for you). That person could be:
  • your spouse, where the relationship was close and continuing;
  • your carer - the person primarily responsible for caring for you at home;
  • a close friend or relation.

Whom should I choose as my attorney?

Choose someone you trust. Many people choose their spouse, but you may prefer to appoint someone with expertise in the area.

• For financial matters you could choose a family member with these professional skills. Other options are the Public Trustee or a private trustee company.
• For personal/health matters you could choose a family member who understands your personal needs. The Adult Guardian, who is appointed by the Government to look after the interests of people with disabilities, is also available.

Your attorney must be over eighteen and must not be your "paid carer" - that is anyone who is being paid to take care of you or to look after your medical treatment, such as your nurse or doctor.

(Note: A "paid carer" is someone, such as a nurse, who is paid a wage to care for you, not someone receiving a carer's pension of similar benefit.)

Can I appoint more that one attorney?

Yes, if you wish. You may appoint one person as your attorney for financial matters and another person for personal/health matters. You may also appoint joint attorneys - that is two or more - for each matter.

How do I give someone power of attorney?

There are four forms available:

• General Power of Attorney;
• Enduring Power of Attorney: Short Form;
• Enduring Power of Attorney: Long Form;
• Advance Health Directive.

Which form should I use?

The general power of attorney is normally used in commercial transactions to give someone specific authority in financial matters.

People who want to appoint an attorney for their own reasons usually prefer to use the enduring power of attorney, instead of a general power of attorney, because it does not lapse if they lose the capacity to make decisions.

With the enduring power of attorney, you can cover both personal/health and financial matters.

The Advance Health Directive form gives you additional control. It sets out the types of medical issues that could arise if you were seriously ill or injured, and allows you to give clear directions about your treatment. For example, you can state whether you wish to be kept alive artificially if you are in a come and are unlikely to recover.

With this directive, medical staff will be able to follow your wishes when they make decisions about your treatment. However, the new law does not authorise euthanasia.

It's not possible to mention on the form every health-care question that could arise, so it's wise to give your attorney for personal/health matters the power to make decisions about any medical issues that haven't been covered explicitly in your Advance Health Directive. However, an attorney cannot be authorised to consent to withdrawal or withholding of life-sustaining medical treatment. Only you can do that in your Advance health Directive.

Can I cancel or change the power of my attorney?

Yes, you can cancel (revoke) it at any time so long as you are capable of understanding what you are doing. You simply complete a special "revocation" form. You can also change or expand the power if you wish, by completing a new Enduring Power of Attorney form.

What are my attorney's responsibilities?

Attorneys must exercise the power given to them.

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