Appointing an Attorney – What if you do not have an Enduring Power of Attorney?

Appointing someone to act on your behalf once you have lost mental capacity is an important decision. Not only do you need to find someone who you trust will make the decisions for you, but you also want to make sure they are eligible. 

Who can be an attorney?  

The criteria to meet to be an eligible attorney is relatively low. Any person may be an attorney if: 

• they are over 18 years of age; 
• they are not your paid carer or health provider; and 
• they are not bankrupt. 

The attorney does not necessarily have to be a family member or friend, so long as the person meets the above criteria you can appoint them to act as your attorney. However, as the attorney will be acting on your behalf it is best to choose to appoint someone who you trust and know will make personal and financial decisions in accordance with your wishes. 

What if you do not have an Enduring Power of Attorney 

If you do not have an enduring power of attorney in place at the time you lose mental capacity then someone may apply to the Queensland Civil and Administrative Tribunal (QCAT) to act on your behalf as your guardian and/or your administrator. A guardian has the ability to make decisions on your behalf for personal (including health) matters and an administrator has the ability to make decisions on your behalf for finance matters. A variety of people can apply to QCAT to act as your guardian or administrator, including 

• family members; 
• friends; 
• professionals (such as a lawyer or work colleague); and 

• anyone who has a genuine and continuing interest in you. 

If no one applies to act or you do not wish for the applicant to act on your behalf, then the Public Trustee and Office of the Public Guardian may be appointed by QCAT to act as your administrator and guardian respectively. 

The list above opens the door of opportunity to act on your behalf of a large number of people. This is why it is important to have an Enduring Power of Attorney Form drafted and signed before you lose the capacity to make decisions, or you risk someone making decisions for you who has limited idea of what your wishes are. 

Additional Factors  

If you don’t have an Enduring Power of Attorney in place, QCAT will take into account a number of factors to determine whether the person making the application to act as your guardian or administrator is appropriate. The factors QCAT will consider include

• whether the applicant will have a conflict of interest when making decisions on your behalf; 
• the applicant’s personal character (e.g. is there a previous criminal record); 
• be available and accessible to you; and 
• has the mental capacity and capability to act as your attorney and communicate with you when they are making decisions on your behalf. 

What happens if the applicant is successful?  

If the applicant is successful then QCAT will appoint them as your guardian or administrator for a period of up to 5 years. The applicant will not be paid for performing their duties as your guardian or administrator. However, the appointed person can make a reimbursement claim for reasonable expenses incurred on your behalf while acting as your guardian or attorney.  

While acting as a guardian, the successful applicant can make decisions for you on the following: 

• where you live and your other daily personal matters; 
• what health support you may receive; and 
• who can contact and visit you. 

An administrator, once appointed, can act on your behalf for the following: 

• • paying your bills and expenses; 
  • managing your investments; and 
  • buying or selling property for you. 

Takeaways  

Almost anyone over the age of 18 years can act as your attorney. It is important that if you want to ensure the person you believe will make the best decisions for you will act on your behalf, that you have an Enduring Power of Attorney in place before you lose mental capacity. Failure to do so may result in costly, time-consuming processes where your first choice of an attorney may not end up being the person appointed by QCAT to make decisions for you. 

If you have any questions or require assistance with drafting or updating your power of attorney in Queensland, please contact the property team at NB Lawyers for more information. 

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