Your Guide To Acting Under A Power Of Attorney For Health And Personal Decisions In Queensland
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- 5 min read
Being appointed as an Attorney under an Enduring Power of Attorney (EPOA) or Advance Health Directive (AHD) is both a legal responsibility and a profound act of trust. When a loved one experiences illness, injury or cognitive decline, you may be called upon to step from the role of family member into the legal role of decision-maker.
This role involves making critical personal and medical decisions on behalf of the Principal (the person who has appointed you), always with their best interests in mind.
Understanding your responsibilities and the legal framework in Queensland is essential to fulfilling this role properly.
In This Article:
What Is An Enduring Power Of Attorney Or Advance Health Directive?
Enduring Powers of Attorney (EPOA) and Advance Health Directive (AHD) are enduring legal documents that allow an adult (the Principal) to appoint a trusted person (the Attorney) to make decisions on their behalf if they lose the capacity to do so or at a specific time.
When someone appoints an Attorney, the scope of decisions they can make depends on the type of matters covered by the document, and can be personal, health and/or financial.
Personal Matters
Decisions about the Principal’s care, welfare, living arrangements and support services. This may also include certain legal matters not related to finances.
Health Matters
Decisions about medical treatment, procedures and services for both physical and mental conditions, including life-sustaining treatments.
Financial Matters
Decisions about property, investments, paying expenses and business dealings. These are handled by a separate Financial Attorney.
It's important to note that attorneys under an Advance Health Directive are limited to health-related decisions only.
When Can You Start Acting As An Attorney?
The timing of your authority depends on the type of decision.
Personal And Health Matters
You can act only when the Principal lacks capacity to make that specific decision.
Financial Matters
You may act immediately, at a time specified in the document, or when the Principal loses capacity.
Understanding Capacity
Capacity is the legal term for the ability to make a decision.
A person is considered to have capacity if they can:
understand the nature and consequences of the decision
make the decision freely and voluntarily
communicate their decision in some form
Queensland legislation presumes that adults have capacity until proven otherwise. Medical professionals usually determine when capacity is impaired, which legally triggers your authority to act.
It's also important to remember that you cannot exercise any powers as an Attorney until you have formally accepted the appointment by signing the EPOA or AHD. Until this acceptance is completed, your authority to act is not legally active.
Want to learn more? Read our in-depth article by clicking here.
Duties Of An Attorney
Queensland law requires attorneys to act under the General Principles and the Health Care Principles. This ensures all adults, including those with impaired capacity, retain their human rights and dignity.
Key duties include:
respecting the Principal’s wishes by considering their expressed views and preferences while they had capacity.
encouraging participation by supporting the Principal in decision-making where possible
acting honestly and diligently by making decisions that genuinely benefit the Principal, and avoid conflicts of interest.
maintaining confidentiality by protecting sensitive personal and medical information.
working collaboratively if multiple attorneys are appointed.
For health care decisions, you must also consider:
medical advice and prognosis.
risks and benefits of proposed treatment/s
alternatives and the possibility of postponing decisions until better options or capacity returns
the Principal’s dignity and autonomy
What If No Power Of Attorney Exists?
If a person does not have a valid EPOA, and is no longer able to make their own personal or financial decisions, a family member, close friend, or trusted professional (such as a lawyer or financial adviser) may be able to step in.
In Queensland, this requires an application to the Queensland Civil and Administrative Tribunal (QCAT).
The applicant can seek to be appointed as:
Administrator to make financial decisions, and/or
Guardian to make personal and health-related decisions.
The person with impaired capacity can also apply to QCAT on their own behalf. It is important to understand that this process can be time-consuming and costly, so planning ahead by preparing and executing an EPOA and/or AHD as part of your estate planning is generally the best way to avoid delays and complications.
Can An Attorney’s Decisions Be Overridden?
While being appointed as an attorney carries significant authority, it is important to understand that no Attorney’s power is absolute. Mechanisms exist to ensure that all decisions are made in the best interests of the Principal and in accordance with Queensland law.
Queensland Civil And Administrative Tribunal (QCAT)
QCAT plays a central role in monitoring and reviewing an Attorney’s actions. It can:
review decisions made by an attorney if there is concern they are not acting in the Principal’s best interests
investigate complaints of misconduct, neglect, or abuse
remove an attorney from their role if they fail to comply with their legal duties or the enduring document’s instructions
Public Guardian
The Public Guardian is another key safeguard. This office is responsible for:
monitoring the actions of attorneys and guardians to ensure they are consistent with the law and the Principal’s rights
mediating disputes between multiple attorneys or between attorneys and family members
investigating complaints of abuse, exploitation, or neglect, and stepping in when decisions conflict with the required legal principles
These mechanisms are in place to protect the Principal and provide accountability, helping to ensure that attorneys act responsibly, ethically and in line with the Principal’s wishes.
Get Legal Advice
You should take the time to read these documents thoroughly, ensuring you fully understand the scope of your powers, the conditions of your appointment, and the obligations you are expected to uphold.
Consulting with legal and medical professionals is highly recommended, particularly when decisions are complex or carry significant consequences. Maintaining accurate records of all actions and decisions is equally important, as it helps ensure transparency and compliance with legal requirements.
Acting under a Power of Attorney is not simply about making decisions. It is about safeguarding the rights, dignity and well-being of someone you care about deeply. Taking a thoughtful and informed approach can provide peace of mind for both you and the Principal.
If you are preparing to assume this role, or want to put your own plans in place to protect your family, RHC Solicitors can provide clear, compassionate guidance every step of the way. Contact us today to discuss your responsibilities and ensure the best possible outcomes for your loved ones.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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