Wondering whether you should set up an enduring power of attorney in QLD or stick with a general power? Well, you should go for a general power if you need someone to handle a specific financial task while you’re temporarily unavailable.
But if you want long-term protection that covers both your finances and health decisions, an enduring power is the better choice.
The thing is, both of these legal arrangements are different and suit completely separate situations. And many Queenslanders get confused when choosing the right one.
That’s where our team at Securator Legal helps families to set up the right legal protections for their future.
In this article, we’ll share:
- How enduring and general powers differ in Queensland
- When each power activates and expires
- The risks of losing capacity without proper documents
- Steps to create a legally valid enduring power
Let’s break down these two legal tools so you can protect yourself and your family.
Distinguishing the Enduring Power of Attorney: The Capacity Threshold
The main difference between an enduring power of attorney and a general power comes down to what happens when you can no longer make your own decisions. One document keeps working when your mental capacity fades, while the other stops dead in its tracks.
Here’s how each power handles the capacity question and why it’s important for your future protection.
The Short-Term Power of a General Power
A general power is a concise legal document for making specific financial arrangements.
For example, you might give someone the power to sell your investment property while you’re overseas for three months. Or you could authorise your adult child to pay bills and handle a business deal while you recover from surgery.
The general power works well when you’re physically unable to be present but can still make your own decisions. Though limited in scope, your attorney gets the authority to handle money matters on your behalf.
The Capacity Trap: Why a General Power Fails When You Need It Most
Your arrangement with a general power fails when you lose mental capacity due to dementia, stroke, or serious accident. The document becomes invalid the moment you can no longer understand your financial affairs. That means your attorney loses all authority right when your family needs help the most.
But an enduring power continues working after you lose capacity, which protects your financial affairs during the exact moments when you need protection.
We recommend setting up an enduring power of attorney in Queensland (QLD) if you want continuous protection that survives capacity loss. The general power serves short-term needs, but it won’t help your family during a mental health crisis.
Once you understand this capacity threshold, let’s explore how these two powers differ in their scope and what responsibilities your attorney can handle.
Scope and Attorney Responsibilities: Health vs. Financial Matters
In general, a general power handles simple financial tasks like paying bills or managing a bank account while you’re temporarily away. But in the moment of a health crisis or permanent incapacity, you need someone with legal authority to make medical and personal decisions for you.
That’s why, if you need someone to make medical decisions or lifestyle choices on your behalf, you should set up an enduring power of attorney.
However, the right document depends on your situation, your health, and what decisions you want someone else to handle. When you know what each power can and can’t do, you can pick the one that keeps you protected.
Let’s look at the specific powers each document grants and what your attorney can legally do.
The Authority Gap: Personal Matters and Health Exclusions
Only the enduring power of attorney grants control over your health and lifestyle decisions.
While a general power works fine for financial matters like selling property or managing investments, it completely excludes personal and health choices.
An enduring power lets your attorney make decisions about:
- What support services and care do you receive during incapacity
- Medical consent for treatments, procedures, and healthcare services
- Daily lifestyle decisions that affect your wellbeing and quality of life
Though the general power stops at your bank account, an enduring power reaches into every corner of your life when you lose capacity. It’s like having a spare key versus having someone who can live in your house and run it while you’re gone.
Who You Can Appoint and the Attorney’s Core Duties
You can appoint multiple attorneys, like your spouse and adult children together, or different people for financial versus personal matters. But the document must be witnessed by a lawyer, notary public, commissioner for declarations, or Justice of the Peace.
Your attorney’s core duties include:
- Act in your best interests and follow your known wishes whenever possible
- Avoid conflicts of interest and never use your finances for their own benefit
- Consult with you on decisions when you still have some capacity to understand
According to Queensland government guidelines, you cannot appoint your paid carer or anyone who was your paid carer in the past three years. Also, your current health provider, or anyone who is bankrupt (if they’ll handle financial matters), is not eligible to serve as your attorney.
Helpful Tip: Choose someone who lives nearby and has time to handle your affairs. The best attorney in theory becomes useless if they’re too busy or too far away to act when you need them.
Initiation: Choosing When the Power to Act Begins
The timing of the appointment is another significant legal distinction between the two types of power.
Before you choose, know that each type of power follows different activation rules:
- General power activation: A general power usually starts right away when the legal document is signed.
- Enduring power activation: After your capacity is lost, personal and health powers in an enduring power kick in automatically.
The best part about an enduring power for financial matters is that you can decide if it starts now or later in the future. You might want your attorney handling your money immediately, or you might prefer they wait until you need help.
Now that you understand what each power can do and when it activates, it’s time to look at what happens when you don’t have the right documents in place.
The Consequences of Neglect and QLD’s Formal Requirements
What happens if you lose capacity without an enduring power of attorney in place? Well, the Queensland Civil and Administrative Tribunal (QCAT) steps in to make decisions that should have been yours to make. Your family loses control over who manages your affairs.
Here’s what you face without proper planning and how to create a valid, enduring power that protects you.
The High Cost of No Enduring Power of Attorney
Not having an enduring power of attorney forces the court system to decide your fate. That means your family member can’t manage your health and financial matters without getting approval from the tribunal first.
Even the QCAT may appoint a stranger to manage your life if there’s conflict among your relatives or no suitable family members are available. The appointment process takes time and costs money while your affairs sit in limbo.
Also, your loved ones end up spending months in hearings just to get the basic authority they could have had immediately with proper planning. (This is exactly the bureaucratic nightmare you’re trying to avoid when you’re already dealing with a health crisis.)
Essential Steps to Create a Valid Enduring Power
An enduring power of attorney is vital for safeguarding your long-term financial and personal well-being. The reason is simple: you need legal protection in place before you lose the capacity to create it.
When you’re ready to create this document, the process requires specific legal steps to make your appointment valid:
- Step 1: From the official website, download the Queensland Government short form 2 or long form 3
- Step 2: While you have full mental capacity to understand what you’re signing, complete the document carefully
- Step 3: To witness your signature, have a lawyer, notary public, commissioner for declarations, or Justice of the Peace present
- Step 4: Give your attorney a copy after they sign to accept the appointment
In our experience, families who set up enduring powers early avoid the stress and expense of tribunal applications later.
After all, paying a lawyer once now beats months of tribunal fees and legal costs while your bills pile up untouched.
Take Control of Your Future Before It’s Too Late
You can’t predict when you’ll lose capacity, but you can decide who steps in when it happens. The difference between an enduring power of attorney and a general power decides whether your family can act or gets stuck in tribunal hearings.
We’ve covered how general powers stop working the moment you lose mental capacity and why only enduring powers grant authority over health and personal decisions. Also, you’ve learned the formal steps to create a valid document that protects your future.
When you’re ready to set up the right power of attorney for your situation, we’ll be happy to help you get it done properly.
