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WILLS AND ESTATES
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An enduring power of attorney is one of the most important legal documents you can have, yet most people put it off until it is too late. If you lose the capacity to make your own decisions through illness, injury, or cognitive decline, an enduring power of attorney ensures that someone you trust steps in to manage your affairs. Without one, your family may face a costly and time-consuming application to a tribunal just to take care of you.
This guide explains what an enduring power of attorney is, why it is essential for every adult in Queensland and New South Wales, what it covers, and critically, when and how to register it with the relevant land registry.
A power of attorney is a legal document in which you (the principal) appoint another person (the attorney) to make decisions and act on your behalf. The word ‘attorney’ here does not mean a lawyer, it simply means the person you have authorised to act for you.
There are two main types:
An enduring power of attorney is governed by the Powers of Attorney Act 1998 (Qld) in Queensland and the Powers of Attorney Act 2003 (NSW) in New South Wales.
In Queensland, an enduring power of attorney can cover three separate areas of decision-making:
Your attorney can manage your bank accounts, pay your bills, collect income, buy and sell investments, and deal with your property. Financial decisions are the most commonly appointed and the area most often requiring registration with the land registry.
Your attorney can decide where you live, what support services you receive, and who you have contact with. Personal decision-making authority only activates when you lose capacity for those decisions.
Your attorney can consent to or refuse medical treatment on your behalf. This is one of the most significant powers you can grant — your attorney may make decisions about surgery, medication, and end-of-life care.
Important: In New South Wales, an enduring power of attorney only covers financial and legal decisions. For health and lifestyle decisions in NSW, you need a separate document called an Enduring Guardianship.
Many people assume an enduring power of attorney is only for the elderly. This is a dangerous misconception. Incapacity can arise at any age (a stroke, a serious car accident, a sudden illness). If you lose capacity without an enduring power of attorney in place, your family faces serious practical and legal obstacles.
Without an enduring power of attorney, no one (not even your spouse) has automatic legal authority to manage your bank accounts, pay your mortgage, or make decisions about your medical care. They must apply to the Queensland Civil and Administrative Tribunal (QCAT) or the NSW Civil and Administrative Tribunal (NCAT) for formal appointment as your administrator or guardian. This process is stressful, expensive, and takes time your family may not have.
An enduring power of attorney works alongside, but is not a substitute for a properly drafted will and estate plan. Your attorney can only act while you are alive. Once you pass away, your attorney’s authority ends and your executor takes over.
Your attorney will have significant power over your life and finances. Choose someone you trust absolutely (a spouse, an adult child, a close friend, or a professional trustee). You can appoint more than one attorney and specify whether they must act jointly (all must agree) or severally (each can act independently).
Think carefully before appointing multiple attorneys who must act jointly, disagreements between them can paralyse decision-making at the worst possible time. Our estate planning team can advise on the right structure for your circumstances.
Each state has its own prescribed form:
Both states require the document to be signed in front of a qualified witness who must confirm you have capacity and understand the effect of the document. The witness requirements differ:
Your attorney cannot witness your signature. A family member who is not a qualified witness cannot witness it either.
The document is not operative until your attorney signs the acceptance section. In NSW, this is a strict requirement under s 20 of the Powers of Attorney Act 2003, authority does not arise until acceptance is signed.
This is where most people (and many advisors) get confused. Registration is not always mandatory, but in one critical situation it is essential.
In Queensland, you do not have to register your enduring power of attorney unless your attorney needs to deal with land on your behalf. There is no central registry for enduring powers of attorney in Queensland.
In New South Wales, the same principle applies, registration is not compulsory unless your attorney needs to deal with real property.
If your attorney needs to buy, sell, mortgage, or otherwise deal with real estate on your behalf, the enduring power of attorney must first be registered with the relevant land registry:
If your attorney signs a property transaction without a registered power of attorney, the transaction may be invalid. Register before any property dealings, not after.
If you own property in both Queensland and New South Wales, you may need to register your enduring power of attorney in both states separately, with separate fees, and using the forms applicable in each jurisdiction.
At HQF Lawyers, our conveyancing and property law team acts in both states and can manage both registrations for you.
Once executed and registered (if required), keep your enduring power of attorney in a secure location. Give certified copies to:
Review your enduring power of attorney every two to three years, or after any major life event (marriage, divorce, the death of your appointed attorney, or a significant change in your relationship with that person). If circumstances change, you can revoke the existing document and make a new one, provided you still have capacity.
Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
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Please describe your enquiry below
An enduring power of attorney operates during your lifetime, it allows your attorney to manage your affairs if you lose capacity. A will operates after your death, it directs how your estate is distributed. Your attorney has no authority once you pass away. Both documents are essential and complement each other. If you have one but not the other, your estate plan is incomplete.
Yes, in Queensland you can appoint different attorneys for financial matters and for personal/health matters using Form 3 (the long form). This is common where, for example, you want an accountant to handle finances but a family member to make health decisions. In NSW, health and lifestyle decisions require a separate Enduring Guardianship document.
An attorney is legally accountable for their actions and must act honestly, in your best interests, and with reasonable diligence. If an attorney mismanages your affairs, whether deliberately or through negligence, they can face personal liability, tribunal proceedings, and in serious cases, criminal charges. In Queensland, the Office of the Public Guardian has powers to investigate complaints and suspend an attorney’s authority. You can reduce this risk by including oversight mechanisms in the document, such as requiring your attorney to provide regular financial reports to a nominated person.
Yes, at any time, provided you still have capacity.