Enduring Power of Attorney in Queensland: A Comprehensive Guide

An Enduring Power of Attorney is one of the most powerful safeguards you can put in place in Queensland. It ensures that if you lose the ability to make decisions, someone you trust is legally empowered to step in—protecting your personal, financial, and health interests. In this guide, we’ll explain how EPAs work, your legal responsibilities, and the steps to create one that reflects your wishes with clarity and confidence.

What Is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal tool that allows you, as the principal, to appoint a trusted person (your attorney) to make decisions on your behalf if you’re ever unable to do so yourself (loss of capacity). That could happen because of an accident, medical condition, or progressive illness.

Unlike a general power of attorney, which becomes invalid if you lose decision-making capacity, an EPA remains effective—it “endures”—even when you can no longer make decisions yourself.

The Legal Framework in Queensland

The Powers of Attorney Act 1998 (Qld) (the ‘Act’) is the key legislation governing EPAs in the state. It outlines:

• Who can make an EPA.
• The powers and responsibilities of attorneys.
• How and when the EPA takes effect.
• Protective measures to prevent misuse.

Why Should I Consider Making an EPA

Loss of capacity can happen unexpectedly—due to an accident or sudden illness—or it might develop over time, as with conditions like dementia.

In 2023, more than 411,000 Australians were living with dementia, and that number is expected to double by 2058, according to the AIHW. With nearly 1 in 5 Australians projected to be aged 65 or over by 2026, yet only 52% of older people have an EPA, according to the AIFS.

An Enduring Power of Attorney (EPA) empowers someone you trust to step in legally if you’re unable to make decisions. Without it, your loved ones may have to seek urgent approval from the Queensland Civil and Administrative Tribunal or QCAT—a stressful and costly process. Having an EPA in place gives you control, avoids delays, and ensures your affairs are handled according to your wishes.

Appointing the Right Attorney

Who you appoint matters. You need someone trustworthy, capable, and willing to act in your best interests.

Ideal qualities include:

• Trust and integrity – someone who will honour your values.
• Organisational and financial skills – especially for managing complex assets.
• Good communication – they may need to deal with banks, doctors, and family members.

Who Can Be an Attorney?

• Adult Individuals: Must be over 18 years old and mentally capable.
• Trusted Family Members or Friends: People who know you well and understand your values.
• Professionals: Such as solicitors, accountants, or financial advisors with relevant expertise.
• Appointing multiple attorneys: You can decide whether they must act together or whether they can act independently.
• Replacement/Successive Attorneys: Named substitutes who can step in if your primary attorney is unavailable.

Interestingly, 70% of attorneys are the principal’s children, while just 20% are spouses or partners, according to the AIFS. Discussing responsibilities openly with your chosen attorney(s) can prevent confusion or disagreement later.

Making an Enduring Power of Attorney

Here are a few important steps involved in setting up an Enduring Power of Attorney

1. Ensure Capacity

You must have mental capacity when signing the EPA. That means understanding:

• What the document means and the legal impact it carries.
• When the powers begin.
• What powers are being granted.
• The risks involved.

If capacity is in doubt, a physician or a psychologist may need to provide a formal assessment.

2. Use the Correct Form

In Queensland, you’ll need to fill out the approved Form 2, which covers financial, personal, and health matters. You’ll need to include:

• Your full name and address.
• Details of your attorney(s).
• When powers start.
• Any instructions or limits.

3. Sign and Witness

Under Section 44 of the Act, your signature must be witnessed by someone authorised, such as a solicitor, Justice of Peace, or Commissioner for Declarations.

Further, the witness must be satisfied that you:

• Fully grasp how the EPA works and what responsibilities it gives to your attorney
• Are not under pressure or duress.

The attorney(s) must also sign to accept their role.

4. Registration (For Land Transactions)

If your attorney is going to manage property or real estate on your behalf, the EPA must be lodged with Titles Queensland.

When Does an EPA Take Effect?

Under Section 32 of the Act, the start date of your EPA depends on what kind of decisions are being made:

• Personal and Health Matters: Starts only when you lose capacity.
• Financial Matters: Can start immediately or later—your choice must be recorded in the form.

Your doctor or health professional may assess capacity if there’s any doubt.

Duties of an Attorney

An attorney is legally bound to act in the principal’s best interests. Their obligations include:

1. Act Honestly and with Care: Decisions must prioritise your wellbeing.
2. Keep Records: Document decisions and transactions to show transparency.
3. Avoid Conflicts of Interest: They must not benefit personally from their role unless you’ve allowed it in the EPA.
4. Respect Your Wishes: If you’ve provided guidance, they must follow it.
5. Maintain Confidentiality: Information should only be shared when necessary.

Misusing power can lead to serious legal consequences—including criminal charges or being removed from their role.

Changing or Revoking an EPA

While you still have decision-making capacity, you’re free to change or cancel your EPA whenever you choose. To revoke it, you must:

• Fill out Form 6 (Revocation of an Enduring Power of Attorney)
• Notify your attorney(s) and anyone holding a copy.
• Sign the form in front of a qualified witness.

If you’ve lost capacity and there are concerns about your attorney’s actions, family members or interested parties can apply to QCAT to have the EPA reviewed or varied.

Elder Abuse Protection: Why Your EPA Matters

Research shows that having a properly prepared enduring power of attorney significantly reduces your risk of elder abuse. The National Elder Abuse Prevalence Study shows that 13% of older Australians with an active EPA experience abuse, compared to 17% without one.

However, a 2024 report from the Australian Human Rights Commission revealed that  37% of people grant their EPA to someone with risk factors for abuse, and only 52% seek legal advice before signing. Informal family agreements are far riskier, with 21% experiencing abuse versus 15% without such arrangements.

The key to protection? Get professional legal advice when creating your EPA. Our Brisbane and Gold Coast Estate Planning Lawyers can help you choose the right person, understand the powers you’re granting, and include proper safeguards. Call us today to get started.

When Hospitals Get Capacity Wrong: Lambourne v Marrable

What Happened

In the case of Lambourne v Marrable [2023] QSC 219, Mr Marrable, an 88-year-old businessman, made EPAs in 2020 appointing family as attorneys. While hospitalised in June 2022, doctors said he lacked capacity and activated his EPAs. Mr Marrable disagreed, revoked them, and appointed new attorneys. His family sued, claiming he couldn’t make these decisions.

Court’s Decision

Mr Marrable won. The Queensland Supreme Court found he temporarily lost capacity due to infection around 8 June 2022 but regained it by 27 June, making his revocations valid.

Key Legal Lessons

• Courts assume you have capacity unless proven otherwise with strong evidence.
• Infections and illnesses can temporarily affect decision-making without permanent loss.
• You don’t need to recall every financial detail to understand your EPA’s basic operation.
• Rushed capacity assessments during illness may not reflect true long-term capacity.
• Even when family restricts movements or disagrees with choices, decisions can still be legally valid.

Red Flags This Case Reveals

• Hospital staff making quick capacity decisions during acute illness
• Family controlling access to the principal or their finances
• Disagreement between medical professionals about capacity
• Poor documentation of assessment reasoning

Bottom Line

This landmark case shows that having your capacity questioned doesn’t mean you’ve lost it permanently. Proper legal processes, not rushed medical assessments, should determine EPA validity. Always get professional legal advice when creating or challenging EPAs.

Commonly Asked Questions on Enduring Powers of Attorney

What if my attorney misuses their power?

You or others can contact the Office of the Public Guardian, QCAT, or the police. If proven, the attorney may be removed or prosecuted.

Can someone challenge an EPA?

Yes. Challenges may relate to your capacity at the time of signing, or an attorney’s conduct.

What’s the difference between an EPA and an Advance Health Directive (AHD)?

An EPA appoints someone to decide for you. In contrast, an AHD sets out your medical treatment preferences in advance. You can—and often should—have both.

What happens if there’s a disagreement?

If you have capacity, your decision overrides the attorney’s. If not, the attorney must follow the instructions in the EPA or apply to QCAT for clarification.

Final Steps

Thinking about an EPA is one thing—doing it is another. To protect yourself and avoid future disputes, make sure your EPA is properly drafted and reflects your wishes.

Next Actions:

• Speak to a solicitor, such as one of our Estate Planning Lawyers in Brisbane and Gold Coast, to get advice tailored to your situation.
• Talk to your family and chosen attorneys so everyone’s on the same page.
• Store the original EPA securely, and give certified copies to key people (e.g., your GP, solicitor, attorney).
• Review regularly, especially if your personal or financial situation changes.

Conclusion

Creating an Enduring Power of Attorney in Queensland isn’t just smart—it’s essential. By choosing someone you trust and clearly documenting your wishes, you give yourself the best chance of having your voice heard, even when you can’t speak for yourself.

For expert legal advice on preparing your EPA, get in touch with one of our expert Estate Planning Lawyers today. Our goal is to help you protect your future—on your terms.