A Will deals with what happens after you die. It does nothing at all while you’re alive.
That gap is where families get stuck. A stroke. A serious car accident on the M1. A dementia diagnosis that moves faster than anyone expected. Suddenly there’s a person who needs decisions made for them — about money, about care, about where they live — and nobody with the legal authority to make them.
An Enduring Power of Attorney (EPOA) is the document that closes that gap. In Queensland it’s made under the Powers of Attorney Act 1998 (Qld), and it is one of the most useful things you can sign. It’s also one of the most commonly left undone, usually by people who assume it’s a document for the elderly. It isn’t. Capacity can be lost at forty as easily as at eighty, and usually with far less warning.
What an EPOA actually does
An EPOA lets you appoint one or more people you trust — your attorneys — to make decisions on your behalf. It’s called “enduring” because, unlike a general power of attorney, it continues to operate if you lose the capacity to make decisions yourself. That’s precisely the moment you need it most, and precisely the moment when it’s too late to sign one.
Queensland’s EPOA covers two distinct types of decision, and understanding the difference matters:
Financial matters. Banking, paying bills, dealing with property, managing investments, lodging tax returns, running or winding down a business. You choose when this power begins. It can start immediately, on a stated date or event, or only when you no longer have capacity. One useful safeguard sits in the Act itself: if you nominate a start date or event and you lose capacity before it arrives, the power becomes exercisable during the period of incapacity anyway, so the gap you were worried about doesn’t open up. People who travel frequently, run businesses, or simply want help managing paperwork while still perfectly well often choose to start it straight away.
Personal and health matters. Where you live, what support and services you receive, and health care decisions. This power operates only during any period when you do not have capacity for the particular matter.
You can appoint the same person for both, or different people for each. You can appoint several attorneys and specify whether they must act jointly, by majority, or independently. You can build in limits, give directions about how you want things handled, and record what matters to you.
That flexibility is the point. An EPOA is not a blank cheque unless you draft it as one.
Some powers can never be given away at all. The Act sets aside a category of special personal matters and special health matters that no attorney can exercise, regardless of how the document is drafted. These include, but are not limited to, making or revoking your Will, voting, entering into a marriage, and making certain medical decisions. Such matters remain yours alone.
Why “my family will just sort it out” doesn’t work
This is the assumption that causes the most trouble, and it’s held by intelligent, organised people every day.
Being someone’s spouse doesn’t give you legal authority over their affairs. Neither does being their child, no matter how involved you are. Banks will not accept it. Aged care providers will not accept it. The Titles Registry will not accept it. Superannuation funds and insurers will not accept it. Being a signatory on a joint account helps you with that account and nothing else — not the mortgage, not the investment property, not the shares held in one name.
Without an EPOA, a family who needs decision-making authority has to apply to the Queensland Civil and Administrative Tribunal (QCAT) under the Guardianship and Administration Act 2000 (Qld) for the appointment of a guardian (for personal and health decisions) or an administrator (for financial decisions).
That process exists and it works. But it is an application to a tribunal, with evidence, including medical evidence about capacity. It takes time. It costs money. Other family members are notified and can be heard, which means an existing disagreement now has a forum. And the outcome is not necessarily the person you would have chosen — in some cases the Tribunal appoints the Public Guardian or the Public Trustee rather than a family member.
Every part of that is avoidable with a document signed while you still have capacity.
The catch: you can only make one while you still can
To make a valid EPOA you must have the capacity to understand what you’re signing — the nature and effect of the document, the powers you’re handing over, to whom, and when they take effect.
That’s why “we’ll organise it if something happens” doesn’t work. By the time something has happened, the window may already have closed. Capacity isn’t always all-or-nothing, and it isn’t always obvious, but there is a point past which the law will not accept a signature. The families who navigate a serious diagnosis most smoothly are almost always the ones who signed the paperwork years earlier, at a time when it felt unnecessary.
There are formal requirements too. Queensland has an approved form — a short form and a long form, depending on how you want to appoint your attorney(s) for personal and financial matters — and it must be completed, signed and witnessed correctly.
Only certain people can witness an enduring power of attorney: a justice of the peace, a commissioner for declarations, a notary public, or an Australian lawyer. Who is excluded matters just as much. The witness cannot be one of your attorneys, cannot be a relation of yours or of an attorney, cannot be a beneficiary under your Will, and cannot be a current paid carer or health provider. “Relation” is defined broadly and takes in spouses and people related by blood, marriage, adoption, de facto relationship or foster relationship. This is why the obvious candidate — an adult child who happens to be a JP — usually cannot do it.
This is where do-it-yourself goes wrong. An EPOA that isn’t executed properly can be rejected at exactly the wrong moment — by a bank, by a settlement agent, by an aged care provider — leaving the family with the QCAT application they were trying to avoid, plus the false comfort of having thought it was handled. Having a solicitor prepare and witness it is a small cost against that risk.
Choosing the right attorney
Give this more thought than most people do. The right person is not automatically the eldest child, or the one who lives closest, or the one who’d be offended if you chose someone else.
Think about:
- Trustworthiness above everything. This person may control your money, potentially for years, at a time when you cannot check what they’re doing.
- It’s a real job with real work in it. Ask them before you appoint them.
- Are they organised and comfortable with financial administration, dealing with banks, and managing paperwork?
- Someone living overseas may struggle with tasks that need to happen locally and quickly.
- Will they be able to have firm conversations with medical staff, or with other family members, when it matters?
- Family dynamics. Appointing two people who don’t get along, and requiring them to act jointly, can manufacture the very dispute you were trying to prevent.
Your attorney takes on genuine legal duties — to act honestly and with reasonable care, in your interests, to keep their money and property separate from yours, to avoid conflicts, and to keep proper records. It’s a position of real accountability, not an honorary title, and it’s fair to say so when you ask someone.
It’s also sensible to consider naming a substitute, in case your first choice dies, becomes unwell, or is simply unable to act when the time comes.
The companion documents
An EPOA is usually one part of a set.
The natural companion is an Advance Health Directive, which lets you record your own instructions about future health care and treatment, rather than leaving those decisions entirely to someone else to interpret. The two documents work together, and how they interact — which one governs a particular decision, and when — is worth understanding properly. We’ve answered the questions we hear most often in our guide to Advance Health Directives in Queensland.
The third piece is a current Will.
Together, those three documents cover the whole picture: who decides while you’re alive but unable to decide for yourself, what you want to happen to your body and your health care, and what happens to your estate afterwards. Prepared together, they’re consistent with each other. Prepared piecemeal over fifteen years, they often aren’t.
Review it when life changes
An EPOA isn’t permanent furniture. It should be revisited if:
- Your appointed attorney dies, becomes unwell, or moves away
- Your relationship with them changes
- You separate, divorce, or enter a new relationship
- Your financial situation changes significantly — a business sale, an inheritance, a property purchase
- Your health changes in a way that makes the timing of the powers relevant
While you still have capacity, you can revoke or replace an EPOA. The same life events that should trigger a review of your Will should trigger a look at this one — which is another good reason to keep them together and review them at the same time.
It’s also worth telling people the document exists and where it’s kept. An EPOA nobody can find is not much better than one that was never signed.
Get it done while it’s easy
It’s a short appointment, a straightforward document, and the relief it gives families later is wildly disproportionate to the effort now. Nobody has ever regretted signing one too early.
Our wills and estates team on the Gold Coast prepares Enduring Powers of Attorney alongside Wills and Advance Health Directives, and we’ll talk through who to appoint, what limits to include, and when each power should start.
Let’s talk — or call (07) 5621 3799, Monday to Friday, 8:30am–5:00pm.
