There are three types of documents commonly used in Queensland to appoint others to make certain decisions on your behalf:
- General Power of Attorney
- Enduring Power of Attorney
- Advance Health Directive
A general power of attorney is a legal document that gives one or more people, nominated by you, specific authority to make financial decisions on your behalf. This power stops if you lose the capacity to manage your own affairs. This kind of power of attorney is most often used for commercial transactions.
An enduring power of attorney continues in the event that you lose capacity to manage your affairs and covers both financial and personal or health decisions. If you have an accident or illness and can’t make decisions for yourself, the enduring power of attorney gives decision making power to the person you’ve nominated, so it’s a very important document for everyone, young and old alike. The kinds of decisions your attorney can make include:-
- financial attorney: paying bills, dealing with Centrelink, taxation, investments, legal matters and property management
- personal/health attorney: your living arrangements, your health care, your diet and dress
Advance Health Directives
In Queensland, Advance Health Directives help you plan what medical treatment or health care you would wish to have in the event that you are too ill to make those kinds of decisions for yourself. You can specify exactly what treatment is and is not acceptable to you, or you can appoint an attorney you trust to make those kinds of decisions on your behalf. You’re also able to make any special information known to medical staff through this document, such as allergies to medication or religious beliefs that impact upon the types of treatments acceptable to you.
It is a good idea to have both an Advance Health Directive and a Power of Attorney in place. If you become so ill that you can’t make decisions for yourself, these two documents together, will direct and empower your attorney when making necessary decisions on your behalf.
Who can make a Power of Attorney or Advance Health Directive?
Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the document of their own free will and who can communicate clearly their instructions.
When should I make a Power of Attorney or an Advance Health Directive?
Right now, before you need it, is the best possible time, especially if you are going into hospital, or if you have a medical condition which could deteriorate and diminish your ability to make decisions.
Who should I appoint to be my Attorney?
You need to appoint someone you trust to make the right decisions. You can appoint more than one person if you wish, and you can specify exactly how they make their decisions – jointly, separately, as a majority, successively – or perhaps a combination of these options.
For financial decisions, make sure that the person you appoint has the necessary skills to deal with your finances.
Who should I talk to about it?
It’s important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It’s also necessary for you to discuss your Advance Health Directive with your doctor, as they can explain the terminology involved. It’s also generally a good idea to discuss your wishes with your family to avoid unnecessary conflict and stress.
Do I need a witness?
Yes, your signature must be witnessed by a lawyer, a notary public, a commissioner for declarations or a justice of the peace. Your witness cannot be your attorney, a relative or a relative of your attorney, a health care provider or paid carer. With an Advance Health Directive, your witness cannot be a beneficiary under your will.
Can I change my mind?
Yes, as long as you still have the decision making capacity to do so, you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.
Contact us to find out more or to arrange a consultation.