Powers of Attorney Act 1998

The legislation directly affects four main groups.

First, any adult with capacity in Queensland (or outside the State, ss.32(3), 35(5)) who wishes to appoint an attorney or give health-care directions. The capacity tests in ss.41–42 are decision-specific and require the principal to understand the nature and effect of the document, including that the power survives incapacity and that the principal will be unable to oversee the attorney once capacity is lost.

Second, the attorneys themselves—individuals, corporate trustees, the Public Trustee, or the Public Guardian (s.29). They must be “eligible attorneys”: at least 18, not a paid carer or health provider for the principal within the previous three years, not bankrupt (for financial powers), and not a service provider for a residential service in which the principal resides. Attorneys assume onerous fiduciary duties (ch.5), record-keeping obligations, and potential personal liability for breach (s.66(2), s.106). Joint, successive, alternative and joint-and-several appointments are permitted, but no more than four joint attorneys for a matter under an enduring power (s.43).

Third, health providers, banks, lawyers, registries and other third parties who rely on these documents. The Act provides them with statutory protection when they act in good faith without knowledge of invalidity or revocation (ss.98–104). They may request medical evidence of impaired capacity (s.33(5), s.36(6)) and must observe priority rules for health matters (s.36(3), cross-referencing Guardianship and Administration Act 2000 s.66).

Fourth, family members, the Public Guardian, Public Trustee, and other “interested persons” who may apply to the court or tribunal for declarations, removal of attorneys, directions, compensation or accounts (ss.110, 122). The definition of “family” in s.110(5) is deliberately wide and includes spouses, adult children, parents and, if none are available, adult siblings.

The Act also indirectly affects dependants whose maintenance may be funded from the principal’s estate (s.89), beneficiaries whose testamentary expectations may be altered by attorney dealings (ss.61B–61D), and the broader community through the policy of encouraging advance planning to reduce reliance on substitute decision-makers under the Guardianship and Administration Act 2000.

Attorneys’ duties are both general and specific. The overarching obligation is to act honestly and with reasonable diligence to protect the principal’s interests (s.66(1)), subject to any express terms in the document (s.67). They must avoid conflict transactions unless authorised in advance or ratified (s.73), keep property separate (s.86), maintain accurate records (s.85), invest only in authorised investments (s.84), and limit gifts and maintenance of dependants to what is reasonable and consistent with the principal’s past practice (ss.88–89). Confidential information may be used only for statutory purposes (ss.74–74A). Attorneys exercising powers jointly must act unanimously unless the document provides otherwise (s.80); they must consult regularly with other guardians, administrators or attorneys (s.79).

Principals retain important rights. They may specify when powers begin (ss.9, 33), include terms or instructions (ss.8(b), 32(1)(b)), revoke while they have capacity (ss.17, 47–48), and expect attorneys to follow the general principles in sch.1 (cross-referenced throughout ch.5). A principal may retrospectively authorise a conflict transaction if still capable (s.73(2)).

Third parties dealing with attorneys have statutory rights to rely on certificates of capacity (s.99(1)), protection from liability where they lack knowledge of invalidity (ss.98–100, 102–104), and the ability to request evidence of impaired capacity before accepting health decisions (s.36(6)).

The court and tribunal hold supervisory rights to give directions, declare validity, remove attorneys, order accounts, award compensation, and relieve honest attorneys from liability (ss.105, 118, 122, 106–107).

Health providers gain the right to depart from an advance health directive if they reasonably believe it is uncertain, inconsistent with good medical practice, or overtaken by advances in medical science, provided they consult any appointed attorney (s.103). They are protected from liability when acting in good faith without knowledge of an advance health directive (s.102).

The Act creates two principal offences. A person must not dishonestly induce another to make or revoke a power of attorney or enduring document (ss.26, 61); the maximum penalty is 200 penalty units. An attorney who knows a power has been revoked must not exercise or purport to exercise it (s.71); again the maximum is 200 penalty units. Failure to keep the attorney’s property separate from the principal’s attracts a higher maximum of 300 penalty units (s.86(1)).

Enforcement is primarily civil. The court or tribunal may order compensation for loss caused by breach or require the attorney to account for profits (s.106). This remedy survives conviction, revocation or death. Beneficiaries whose interests are diminished by an attorney’s sale or dealing may seek compensation from the estate under s.107, treated as if it were a family-provision application under the Succession Act 1981.

The court may remove an attorney, vary or revoke the document, order accounts or audits, or give directions (ss.116, 122, 118). It may also relieve an honest and reasonable attorney from personal liability (s.105). Criminal prosecution for the dishonesty offences remains available but is not the primary enforcement mechanism. The Public Guardian may audit accounts (s.85 note) and the tribunal may approve clinical research or special health care under the parallel regime in the Guardianship and Administration Act 2000.

The Act is not a code. It expressly preserves common-law recognition of informal health-care instructions (s.39) and the court’s inherent parens patriae jurisdiction (s.109). It yields to the Forensic Disability Act 2011 and Mental Health Act 2016 in cases of inconsistency (ss.37A–38). It cross-references and is subordinate to the Guardianship and Administration Act 2000 for health-matter priority (s.33(4), s.36(3)), consultation duties (s.79 note), and substitute decision-making when no enduring document exists.

Execution requirements interact with the Property Law Act 2023 (ss.12, 69(4)), Land Title Act 1994 and Land Act 1994 (ss.10(6), 24D(2), 46, 60). Investment powers are tied to the Trusts Act 1973 (s.84). Capacity and interpretation draw on the Acts Interpretation Act 1954 definitions of “justice”, “lawyer” and “office” (ss.13, 14, 31). The Succession Act 1981 supplies the procedural framework for compensation claims under ss.61D and 107.

The 2021 business provisions prevail over inconsistent parts of the Act itself (s.24C(3)) but do not disturb land-registry execution rules. Electronic signing is governed by the accepted-method test in s.24A, which mirrors Commonwealth electronic transactions legislation but is tailored by regulation (s.24G).

Transitional provisions (ch.9) ensure pre-1998 powers made under the Property Law Act 1974 are treated as made under this Act (s.163), while preserving the effect of pre-commencement revocations and registrations.

The most significant recent amendments occurred in 2019, 2021 and 2023.

The Guardianship and Administration and Other Legislation Amendment Act 2019 tightened eligibility criteria for attorneys (s.29), inserted ss.61A–61D to protect testamentary beneficiaries from unintended disinheritance when attorneys deal with property, clarified capacity tests (ss.41–42), removed the “special life-sustaining measures” category, and aligned the Act with contemporary succession and privacy principles. These changes responded to concerns about elder financial abuse and the need to preserve estate expectations.

The Justice and Other Legislation Amendment Act 2021 inserted ch.2 pt.3A to facilitate electronic and remote execution of general powers of attorney for businesses. It responded to the COVID-19 emergency experience under the now-repealed Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020. The new part permits electronic documents, accepted electronic signing methods, counterpart signing, AVL witnessing of corporate seals, and registry lodgement of certified printed copies (ss.24F–24L). It also removed the sealing requirement (s.24E) and broadened who may execute on behalf of corporations and partnerships (ss.24H–24I). The changes were designed to reduce transactional friction for commercial entities while maintaining evidentiary safeguards.

The 2023 amendments (No. 27) updated cross-references to the new Property Law Act 2023, replaced references to the repealed Trusts Act provisions where necessary, and made minor drafting corrections. They reflect the continuing modernisation of property and succession statutes.

Because the Act is largely facilitative and protective, reported litigation has clustered around four areas.

First, capacity to execute: courts have emphasised the high evidentiary threshold in ss.41–42. Witnesses are advised to record their assessment (s.41(2), s.42(2)). Disputes often arise when family members contest an enduring document made shortly before a dementia diagnosis. The presumption of capacity (s.111A) places the onus on the challenger, but medical evidence and the witness’s contemporaneous file note carry substantial weight.

Second, conflict transactions (s.73). The statutory examples—buying the principal’s house or car, lending the principal’s money to the attorney’s friend, paying the attorney’s personal expenses—are frequently litigated. Retrospective ratification by a still-capable principal or by the court under s.118(3) is possible but requires clear evidence that the transaction was in the principal’s interests and accords with the general principles.

Third, revocation on marriage, divorce or civil-partnership events (ss.52–53A). The “contrary intention” exception has generated argument about whether a later will or codicil suffices. Courts read the exception narrowly; an express statement in the power itself is safest.

Fourth, the interaction between advance health directives and later enduring powers for health matters. Section 50(2) and the Guardianship and Administration Act 2000 s.66 give priority to the directive’s directions over an attorney’s power. Health providers have successfully relied on s.103 to depart from directives that have become medically obsolete.

Controversies have also surrounded the 2019 amendments protecting beneficiaries (ss.61B–61D). Some practitioners initially feared they created uncertainty for conveyancers; the six-month limitation period and codicil-like effect of court orders have largely allayed those concerns. The expansion of electronic execution has raised authentication risks, but the accepted-method test and statutory declarations under s.99(3) have so far prevented reported abuse.

Most practitioners miss several subtle traps.

First, the distinction between “impaired capacity” and “incommunicate” in s.18: only the latter allows the court to confirm a non-enduring power; the former automatically revokes it (subject to security-power exceptions).

Second, the three-year look-back for paid carers in the eligible-attorney test (s.29(1)(a)(ii)) catches former employees who provided care privately; the disqualification is absolute even if the care relationship ended years earlier.

Third, s.59AA’s automatic revocation when an attorney becomes the service provider for a residential service where the principal resides is often overlooked; it operates even if the attorney is otherwise eligible and the principal consents.

Fourth, the business electronic-execution regime (ch.2 pt.3A) does not apply to enduring powers or advance health directives; attempting to use AVL or electronic signing for those documents risks invalidity because the formal requirements in s.44 remain unchanged.

Fifth, attorneys cannot rely on s.73(9) protection for conflict transactions if the third party “has reason to believe” the transaction is a conflict; constructive notice can arise from the very wording of the power or from the attorney signing “as attorney”.

Sixth, the compensation right in s.107 is available even if the attorney is also the disappointed beneficiary; the court can still order the estate to make up the lost benefit, effectively reversing the attorney’s dealing for succession purposes.

Seventh, transitional validation in s.173 of public-trustee delegations made before the 2019 amendments means some older appointments that would now be invalid are saved; due diligence on historical delegations is still required.

Finally, the “accepted method” for electronic signing (s.24A) is not frozen at the 2021 regulation; future regulations can declare particular technologies unacceptable, so practitioners must check the current regulation before advising on remote executions.

Compliance begins with capacity assessment. Before any enduring document is executed, the witness (and the certifying doctor or nurse practitioner for an advance health directive) must be satisfied the principal understands the matters listed in ss.41(2) and 42(2). A short file note recording the questions asked and answers given is prudent and, if doubt later arises, will be powerful evidence.

Use the current approved forms. For general powers, strict compliance is not required but substantial compliance is (s.11, Acts Interpretation Act 1954 s.48A). For enduring documents, the approved form contains the statutory certificates; omitting them invalidates the document (s.44).

Execution logistics matter. For individuals, the principal (or eligible signer) and eligible witness must be present together. For corporations executing general business powers, two directors or a director and secretary may sign; if a seal is used, witnessing may occur by AVL provided the document states that fact (s.24H(3)). Counterparts are permitted (s.24K); each must ultimately be lodged if the power is to be registered.

Attorneys must sign an acceptance on the document before the power can be exercised (s.44(8)). They should be given a copy of the executed document and a clear explanation of their duties under ch.5. A conflict-transaction authority should be included if foreseeable self-dealing (e.g. renting the principal’s property) is contemplated.

Registration is not mandatory but is advisable for land dealings (ss.25, 60). Once registered, the power continues to authorise dealings with land until a revocation instrument is also registered, unless the power itself states otherwise.

Revocation requires the same formality as creation (s.17 for general powers, s.49 for enduring documents) plus reasonable steps to notify attorneys and deregister (ss.16, 46). Marriage, divorce or civil-partnership events automatically revoke powers in favour of the spouse or partner unless a contrary intention is expressed; review existing documents on any change in marital status.

Attorneys must maintain separate bank accounts, keep detailed records, and avoid any transaction in which their personal interest conflicts with their duty unless prior written authority or court order is obtained. Annual statements of account provided to the principal (while capable) or to the Public Guardian (if requested) reduce later disputes.

Health providers should request a copy of any advance health directive and, if it directs withholding of life-sustaining measures, confirm the clinical criteria in s.36(2) are met. If uncertainty exists, consult the appointed attorney and obtain a second medical opinion.

When doubt arises about validity, operation or an attorney’s decision, apply promptly to the Supreme Court or QCAT under ch.6. Early directions under s.118 can prevent irreversible loss and may protect the attorney from later compensation claims.

Finally, periodic review is essential. An enduring document made ten years ago may no longer reflect current wishes, medical realities or family circumstances. A short statutory declaration or new document executed while capacity remains is the cheapest and most effective compliance tool.