Power Of Attorney - Do You Need One? | Stone Group Lawyers

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Power of Attorney – do you need one?

Do you know what a power of attorney is? Do you want to know how to appoint a power of attorney? This article will assist you in understanding all information relating to a power of attorney and who/how to appoint one.  

What is power of attorney?

A power of attorney is a legal document that appoints a person of your choice to make decisions on your behalf about personal/health matters, and/or financial matters. In Queensland, there are two types of power of attorney, a General Power of Attorney and an Enduring Power of Attorney.

A General Power of Attorney is only for financial matters, and appoints someone to act on your behalf while you have capacity only. For example, if you were travelling overseas for an extended period of time, you may appoint a trusted friend, family member or professional to act on your behalf during this period.

An Enduring Power of Attorney is an appointment that continues indefinitely, even if someone loses the mental capacity to make their own decisions. An Enduring Power of Attorney will continue until revoked.

You can place any restrictions on the appointment as you deem appropriate, including the types of decisions that your attorney can make on your behalf.

You can appoint more than one person to act as your attorney, and this is often recommended. You can also specify whether your attorneys have to act jointly (with all attorneys in agreement), by majority, or severally (any one of them can make a decision). You can also appoint an attorney as a replacement attorney in the event that one of more of your attorneys cannot act in that capacity.

How do I get a power of attorney?

You can complete a Form 1 – General Power of Attorney form by downloading it from the Queensland Government Department of Justice and Attorney-General Website.

Section 44 of the Powers of Attorney Act provides that the enduring powers of attorney must be in the approved form and sets out the requirements of the document.

There are two forms for an enduring power of attorney—a Form 2 – Enduring Power of Attorney (Short Form) or a Form 3 – Enduring Power of Attorney (Long Form).

The short version is for those people wishing to appoint the same attorney or attorneys for both financial and personal matters. The long form is used for the appointment of different attorneys for different purposes.

Given the importance of the appointment of a power of attorney and the consequences of inappropriate appointments, we highly recommend that you always obtain independent legal advice prior to executing any power of attorney.

Who can be appointed as my power of attorney?

To be eligible to be appointed an enduring power of attorney (s 29 Powers of Attorney Act), a person must:

  • be 18 years of age or over
  • not be a paid carer or health provider of the principal
  • not be a bankrupt or have any arrangement in place under the Bankruptcy Act 1966 (Cth)in relation to their financial affairs (section 57 Powers of Attorney Act 1998 (Qld)) if being appointed as an attorney for financial matters.

The following can also be appointed as an enduring attorney:

Most importantly, a principal must be able to trust the person that they appoint as their attorney, as a person without legal capacity is highly vulnerable to abuse from an unscrupulous attorney.

How to change a power of attorney?

You can change or revoke your power of attorney at any time, provided you have capacity to do so. A General Power of Attorney can be revoked by signing a Form 5 – Revocation of General Power of Attorney. An Enduring Power of Attorney can be revoked by signing a Form 6 – Revocation of Enduring Power of Attorney.

There are certain circumstances that automatically revoke your power of attorney, such as when you get married or divorced, or you die (where the executor of your Will shall take over the control of your personal and financial matters in distributing your estate).

Where to get a power of attorney?

At Stone Group Lawyers, we regularly assist our clients to prepare and execute General and Enduring Powers of Attorney. We can assist with advice o who to appoint as your attorneys, the roles that they may be required to undertake, and advising of any limitations that you should place on their appointment. We can also assist you by witnessing your execution of the document, and in making certified copies that you can distribute to your attorneys or anyone else who may need a copy.

If you would like further information or assistance with preparing or chaning a power of attorney, please do not hesitate to contact Stone Group lawyers today on (07) 5635 0180 to book your complimentary 30 minute consultation with one of our friendly commercial lawyers.

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