Incapacity Planning and the Role of an Enduring Power of Attorney
None of us know what the future holds, and there may come a time when you’re unable to make certain decisions for yourself. Having a clear plan in place means the people you trust can help you when you need it most. An Enduring Power of Attorney (EPOA) is a central part of that preparation.
Below, we explore what an attorney can and can’t do, how their decisions work in practice, and what this means for the executor after you pass away.
Incapacity Planning in Queensland Today
Life in Queensland looks different today than it did even a decade ago, and these changes make it more important than ever to plan for what would happen if you couldn’t make decisions for yourself.
People are living longer, families are more blended, and more Queenslanders now run their own businesses. All of this means there’s usually someone who depends on you, whether financially, personally or professionally.
The population in Queensland is also growing significantly, with many new residents moving with legal documents prepared in other states. While Powers of Attorney from other states are generally recognised in Queensland, they don’t always work smoothly for things like property dealings or with certain institutions. Without a usable EPOA, families may need to wait for QCAT to appoint someone to assist.
That’s why incapacity planning matters. It ensures someone you trust can make decisions and keep things running if you can’t.
Incapacity planning is no longer just a “legal extra.” It’s a practical way to make sure your finances, your home life and your business can keep running smoothly if something unexpected happens.
Power of Attorney vs Enduring Power of Attorney
There’s an important difference between a Power of Attorney (POA) and an Enduring Power of Attorney (EPOA).
A POA lets you appoint someone to make decisions for you, but only while you still have capacity. If you lose the ability to make your own decisions, a standard POA automatically stops.
An EPOA, on the other hand, continues to operate after you lose capacity. This is why an EPOA is the key document for incapacity planning. It allows you to nominate someone to make financial decisions, personal decisions, or both, depending on what you choose in the document.
The Three Pillars of Effective Incapacity Planning
Incapacity planning works best when it’s built around three core foundations: authority, clarity and continuity.
Authority
The first pillar ensures that the right people are legally empowered to act when required. This means carefully selecting attorneys, appointing backups, and ensuring the person chosen has the skills, temperament and availability to manage what may be complex responsibilities. For many, this includes granting authority over personal finances but also over business matters, trusts, companies or Self Managed Super Funds (SMSFs).
Clarity
The second pillar focuses on defining exactly what attorneys may do. Not all powers are automatic. Some people want broad decision-making ability, while others prefer to restrict actions such as gifting, selling major assets or managing business operations. Clarity also prevents conflicts between the EPOA and a Will, trust deed or shareholder agreement.
Continuity
Finally, continuity ensures life continues smoothly even during periods of incapacity. Mortgage repayments, staff wages, BAS lodgements, insurance renewals, investment decisions and medical or lifestyle arrangements all need to be maintained. Without a plan that supports continuity, even a short period of incapacity can trigger unnecessary disruption.
Understanding the Duties of an Attorney
When someone is appointed under an EPOA, they take on an important responsibility. Queensland law requires them to act in the person’s best interests, make honest and careful decisions, avoid conflicts of interest and keep good records. Those are the formal rules, but in everyday life, the role often involves more than just following the law.
An attorney may need to talk with banks, manage bills, help with property matters, or handle family expectations. Sometimes they may need professional advice to make sure they're doing the right thing. And importantly, the decisions they make while the person is alive can affect what the executor later has to sort out after death.
Good attorneys are those who understand their legal duties, while also taking the time to think about the person’s values, preferences and long-term interests.
What a Power of Attorney Can Actually Do
An EPOA lets you choose someone to make decisions for you if you lose the ability to make them yourself. In Queensland, these decisions fall into two main categories: financial matters and personal/health matters (unless you have a separate Advance Health Directive).
Financial decisions an attorney can make
These powers begin either straight away or only if you lose capacity, depending on what you choose in the document.
An attorney for financial matters can:
pay bills and manage bank accounts
deal with Centrelink, the ATO and other government bodies
make investment decisions
buy, sell or manage property (if the EPOA is signed and witnessed correctly)
enter contracts on your behalf
manage loans, insurance and everyday financial commitments
Essentially, they can step into your shoes for financial decisions, but only within the limits you set in the document.
Personal and health decisions
These powers only start once you lose capacity.
An attorney for personal/health matters can make decisions about:
where you live
your daily care and support
who you can see or communicate with
consent for medical treatment (unless covered by an Advance Health Directive)
general lifestyle decisions
They cannot override specific medical instructions you’ve already set out in a Health Directive.
What attorneys cannot do
No matter what powers you give them, attorneys cannot:
change your Will
make or revoke an Advance Health Directive
vote on your behalf
make decisions after you die
make decisions that benefit themselves unless you’ve specifically authorised it
make gifts beyond what is allowed under the Powers of Attorney Act
They also cannot make decisions outside the limits you set. If a decision is unclear or falls into a grey area, they should seek legal or professional advice.
Designing an EPOA That Works in the Real World
An EPOA isn’t helpful unless it can actually be used. That means the document needs to meet the practical requirements of the people and organisations an attorney will deal with, for example, banks, real estate agents, government bodies and the Queensland Titles Office.
Banks often need certified copies and may ask for extra checks before letting an attorney access accounts. Property matters have strict witnessing rules, and certain transactions may require the EPOA to meet Queensland-specific formalities.
Digital access is another area that’s becoming more important. Many people now manage finances, investments, photos and documents online. Without clear instructions or authority, attorneys may find themselves unable to access important accounts, or at risk of breaching privacy rules.
For some people, a simple, well-prepared EPOA is enough. Others may need extra instructions or conditions added so the attorney can manage things smoothly if capacity is lost. The key is making sure the document matches the person’s day-to-day life.
Protecting Against Misuse
Because an EPOA gives an attorney significant power, it’s wise to build in precautions. This might include appointing more than one attorney, adding limits to certain decisions, or setting out when the attorney must consult someone else.
These precautions can reduce the risk of mistakes or misunderstandings, and they also make things easier for the executor later. Clear boundaries and good record-keeping help protect everyone involved.
How Attorney Actions Affect Executors After Death
An EPOA stops the moment the person dies, and the executor takes over. However, the choices an attorney made beforehand don’t disappear, they often form part of what the executor must deal with.
Executors may need to review the attorney’s decisions, such as financial transactions, property dealings, gifts or transfers. If something wasn’t done properly, the executor may have to investigate it, gather records or, in rare cases, take steps to recover funds on behalf of the estate.
This is why a clear, well-prepared EPOA is so important. When the document is easy to understand and the attorney has acted carefully, the transition to the executor is smooth. When it’s unclear or poorly drafted, the executor’s job becomes much harder and delays can occur.
Bringing Your Incapacity Plan Together
A thoughtful incapacity plan ensures that decisions can be made smoothly during difficult times and that everything remains consistent with your long-term wishes. By understanding what a Power of Attorney can do and how their decisions flow through to the estate, you create certainty for yourself and clarity for the people who will one day need to carry out your plans.
If you're ready to review your current arrangements or put an Enduring Power of Attorney in place, our team can guide you through the process and help you plan with confidence. Please feel free to reach out to us for help.
Disclaimer: This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers take no responsibility for any use of the information provided in this article.
