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Justice of the Peace (qualified) Queensland

An unofficial reference based on the duties of Justices of the Peace (Qualified)
The Queensland Government holds copyright for all the material referenced on this site

Powers of attorney

This file last saved 12 August, 2019 4:11 PM 12 August, 2019 16:21

Caveats

1. A general principle of the Powers of Attorney Act 1998 is that the person is presumed to have capacity. If there is doubt, you should make a written record of the evidence you relied upon in concluding that the principal understood the nature of the document, whether it is a GPA, EPA or an AHD.

2. GPAs and EPAs must be on the approved form and you should record this fact in your log.

3. Should you suspect that the principal does not have the capacity to sign the document, or that the person is being abused, neglected or exploited, you should make a referral to the Adult Guardian.

general power of attorney

4. A general power of attorney (GPA) is a formal agreement whereby the principal grants the attorney(s) the power to make decisions on their behalf. GPAs normally only relate to financial matters. The GPA is an official, prescribed form with space to the principal to specify the terms of the agreement. Only the official form is acceptable. Only the principal and a witness sign the form.
5. A GPA can specify a time or a circumstance when the attorney can begin to make decisions on the principal's behalf, but the power generally beings as soon as the document is signed. The power ends:
1. when specified in the document;
2. when the principal revokes it; and/or
3. if and when the principal loses the capacity to manage their own affairs.
6. An attorney's power ends when the attorney:
1. resigns;
2. loses capacity;
3. becomes bankrupt; or
4. dies.
7. A GPA is processed in accordance with general procedures.

Enduring Power of Attorney

8. An enduring power of attorney (EPA) is similar to a GPA in that it is a legal agreement wehreby the principal gives the attorney(s) the power to make decisions on their behalf.
9. The main difference is that an EPA continues even if the principal loses decision-making capacity. In fact, an EPA often commences when the principal loses that capacity.
10. An EPA may relate to personal and health matters and/or to financial matters. The document nominates the areas that it covers.
11. The principal and witness are both to be present, and preferably the attorney.
12. Ensure the principal has full understanding of the nature and effect of the EPA
13. Eligible witness must not be:
1. less than 18 years of age;
2. the eligible signer, signing on behalf of the principal;
3. attorney for the principal;
4. related to the principal or the principal's attorney; or
5. the principal's paid health carer or health care provider.
14. Explain to the principal that you must read through the document to ensure it is completed correctly and nothing is missing.
15. Read through the document, preferably with the principal.
16. Ensure that there is no extant EPA in another State or Territory that could be relevant if it contradicts the current EPA or could be used in its stead. An interpreter should be present if this facility is required.
17. Follow the standard steps for witnessing a document, incorporating the following to ensure that in accordance with the Powers of Attorney Act 1998, no-one may make an EPA without an understanding of the following matters:
1. the principal may specify or limit the power to be given to the attorney and instruct the attorney about the exercise of the power in respect of personal, health and/or financial matters;
2. when the power begins;
3. that once the attorney's power for a matter begins, they will have the power to make decisions about the matter and will have full control over it, subject to the terms or information about exercising the power which are included in the document;
4. that the principal may revoke the EPA at any time so long as they are capable of making an EPA giving the same power;
5. that the power the principal has given continues, even if the principal's capacity to make decisions becomes impaired; and
6. that if at any time the principal is incapable of revoking the EPA, they are also unable to effectively oversee the use of the power.
18. Use open questions to validate the principal's understanding of the above.
19. Once you have ensured that they have a full understanding of the matter, have the principal sign the EPA.
20. Read the Important Notice to the Witness and witness the signature.
21. Ensure the attorney reads the Important Notice to the Attorney and completes the Attorney's acceptance.

References

22. The Duties of Justices of the Peace (Qualified) Handbook, Queensland Government - June 2017 Section 4.9
    Powers of Attorney Act (Queensland) 1998