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Hi everybody - George Sourris, Empire Legal.

Today's topic: Power of Attorney QLD Property - everything you need to know!

Ladies and gentlemen, it's me, George Sourris from Empire Legal. Let's jump into it. What is a Power of Attorney? Thanks to the Queensland Government for providing the information we are about to discuss today. A Power of Attorney, or POA, is a legal document that allows you, the Principal, to appoint someone you trust, i.e. an Attorney/s, to make decisions for you during your lifetime. An Attorney can make decisions about:

1. Personal (including health matters), which relate to personal or lifestyle decisions. This includes decisions about: support services, where and with whom you live, healthcare, and legal matters that do not relate to your financial or property matters. 

2. Financial matters, which relate to decisions about your financial or property affairs, including: paying expenses, making investments, or selling property (including your home), and carrying on a business. There are two types of Power of Attorneys: a General Power of Attorney, which ends if you lose your capacity, and an Enduring Power of Attorney, or EPOA, which continues if you lose capacity.

General Power of Attorney. 

A General Power of Attorney allows you, the principal, to appoint someone you trust, the Attorney, to make decisions about FINANCIAL matters. for you whilst you HAVE CAPACITY to make decisions about those matters.

You may use a General Power of Attorney to appoint an attorney for a specific period or event - e.g. you're going overseas and need someone to sell your house or pay your bills. It's used while you can still make your own decisions and ends once you lose capacity to make those decisions. It's simple, all you need to do is print and complete a General Power of Attorney Form 1, available here.

Enduring Power of Attorney. 

An Enduring Power of Attorney allows you, the Principal to appoint someone you trust, the Attorney to make decisions about personal (including health matters) and/or financial matters for you.  An attorney for personal matters, including health matters, can only make decisions for you when you do NOT have capacity to make those decisions.

You can decide when your attorney's power to make decisions for financial matters begins, including: when you no longer have capacity to make those decisions immediately, for a specific time, or in particular circumstances or occasions.

Who can make an Enduring Power of Attorney? 

To make an Enduring Power of Attorney, you must be 18 years or older and have capacity to understand the document you are signing and the power it gives.  

This means you need to understand:

• that you may specify or limit the power to be given to your attorney;  
• once the power begins, your attorney will have full control over the exercise of power (subject to any terms in the EPOA);
• that the power continues even if you lose capacity;
• that you may revoke the Enduring Power of Attorney at any time while you have capacity to do so; and
• that if you lose capacity and are unable to revoke the Enduring Power of Attorney, you are effectively unable to oversee the use of the power.

You must also be capable of making Enduring Power of Attorney freely and voluntarily, NOT due to pressure from someone else.  Your EPOA must be signed by you in the presence of an eligible witness. More on this later. In signing the EPOA, the witness is certifying that you appear to have capacity to make the EPOA.

To find out more about how to create an EPOA, see Section 6 of the Capacity Assessment Guidelines, which we will put in the blog.

Choosing your Attorney. 

You should choose your attorney or attorneys carefully.  Unfortunately, attorneys may mismanage their role. This could include using your money to pay their own expenses or selling your assets and keeping your money for themselves. Only appoint people you trust to look after your affairs. To be eligible to be an attorney, a person must: have capacity to make decisions they are appointed for, be 18 years or older, and not be your paid carer or have been your paid carer in the past 3 years.

A paid carer is someone paid a fee or wage to care for a person but not someone receiving carer's pension or benefit,  your health provider, a service provider for a residential service where you live, or a bankrupt.

Refer to pages 7-8 of the explanatory guidelines for more information to help you choose your attorneys. You can appoint multiple attorneys, but you can only appoint a maximum of four people who must agree on all decisions - joint attorneys.  If you do appoint multiple attorneys, you'll need to decide how they exercise their power.

For example, jointly, severally, by majority, successively, or alternatively.  There's more on this in page 10-11 of the guidelines about how to appoint multiple attorneys.  If you don't have anyone to appoint as an attorney, tough times, but if you don't feel confident that you have anyone in your life that is suitable to take responsibility as an attorney for personal and health matters, you can appoint the Public Guardian.

Guys, there is a guideline to help you complete this form. We'll put it in the blog. It steps you through the questions and will give you useful information, practical examples, hints, tips, etc. 

You're going to need to sign this form in the presence of a witness, that's either a Justice of the Peace, a Commissioner for Declarations, a Notary Public or a Lawyer.

So, once you and the witnesses have signed the document, your attorneys must also sign it to accept the appointment. Your attorneys do not have to do this immediately, however they must sign it before they can begin making decisions on your behalf.  

Alright, so what do you do with a completed EPOA? 

You don't have to register it. However, if your attorneys need to deal with land in Queensland on your behalf, the EPOA must be registered with Queensland Titles.

This is done in the registry by lodging a request, together with a single sided certified copy of the EPOA. Be aware that once registered with the Titles Registry, an image of the EPOA will exist on a public searchable register. You should keep the original in a safe place. You should: give a certified copy to your attorneys, doctor, other health providers, bank or lawyer. 

Let your close family and friends know that you've made an EPOA and where they can find it. You should review the EPOA if your personal circumstances change.

Cancelling your EPOA. 

You may revoke or cancel your EPOA at any time while you have capacity to do so. There's a form you can fill out, a Form 6, to revoke the Enduring Power of Attorney. If you revoke your EPOA,  you must take all reasonable steps to advise all of your attorneys that it's been revoked.

If you've registered with the Queensland Titles Registry, you also need to register a revocation of EPOA by lodging another form, a Form 16, along with a single sided copy of the revocation of Power of Attorney Form 6. 

FUN FACT - when you create a new EPOA or Advanced Health Directive, the old one is invalid.

EXTRA FUN FACT (IMPORTANT) - A POA/EPOA ceases to have any power when the Principal dies. If the principal is dead, the POA/EOPA is worthless. The Attorneys can only make decisions for you whilst you are alive. Upon death, the executors of the estate step in to make decisions for the estate of the deceased. 

To learn more about other circumstances where your EPOA may be revoked or cancelled, see page 19 of the explanatory guide in the blog.

Well,  there you have it. We've made it through EPOA. As you can see, it's a really powerful,  intricate document. 

Real estate agents - keep in mind that just because a contract may be signed by a Power of Attorney, the real estate must take reasonable steps to make sure the Power of Attorney is valid, i.e. executed correctly, and the Attorneys have the power to sign on behalf of the Principal.  Best practice is to sight the original POA or get a certified copy. DON'T accept a copy that's not the original. 

Here at Empire Legal, we're well versed with Power of Attorneys. If you have a Power of Attorney matter and you need help, call us. 

Thank you everyone. 

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George Sourris. Empire Legal.

If you have any questions, you can email me: george@empirelegal.com.au. 

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Thanks for reading everybody. See you on the next one.

Ladies and gentlemen, please keep in mind that all advice is general in nature and does not constitute legal advice. This is authorised by George Sourris, Empire Legal, Brisbane, Queensland, Australia.

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Note: all information is general in nature and as each matter is unique please contact our office for tailored advices: the above does not constitute legal advice.