Minister: Attorney-General and Minister for Justice and Minister for Training and Skills
Agency: Department of Justice and Attorney-General


Powers of Attorney Act 1998


Queensland Crest
Powers of Attorney Act 1998

An Act consolidating, amending and reforming the law about general powers of attorney and enduring powers of attorney and providing for advance health directives, and for other purposes

Chapter 1 Preliminary

1Short title

This Act may be cited as the Powers of Attorney Act 1998.

2Commencement

This Act commences on a day to be fixed by proclamation.

3Dictionary

The dictionary in schedule 3 defines particular words used in this Act.

4Act binds all persons

This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

5General overview

(1)An attorney is a person who is authorised to make particular decisions and do particular other things for another person (the principal).
(2)After the commencement of this Act, principals may authorise attorneys by—
(a)general powers of attorney, enduring powers of attorney or advance health directives; or
(b)powers of attorney under the common law.
(3)In addition to replacing the statutory provisions for powers of attorney and enduring powers of attorney, this Act introduces advance health directives and statutory health attorneys.

Note—

The Property Law Act 1974, part 9 (Powers of attorney) was repealed by section 182.

However, see section 163 (Powers of attorney under Property Law Act 1974) for a transitional provision.

(4)An advance health directive is a document containing directions for a principal’s future health care and special health care and may authorise an attorney to do particular things for the principal in relation to health care.

Note—

Advance health directives are dealt with in chapter 3.
(5)A statutory health attorney is the person authorised by this Act to do particular things for a principal in particular circumstances in relation to health care.

Note—

See section 62 (Statutory health attorney).

Also, see the Guardianship and Administration Act 2000, section 66(5) (Adult with impaired capacity—order of priority in dealing with health matter).

s 5 amd 2000 No. 8s 263sch 3

6Scope of Act

Except where otherwise provided, this Act applies only to documents made, whether under this Act or otherwise, after the commencement of this Act.

Note—

A general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney, or enduring power of attorney, made under this Act—section 163.

6ARelationship with Guardianship and Administration Act 2000

(1)This Act is to be read in conjunction with the Guardianship and Administration Act 2000 which provides a scheme by which—
(a)the tribunal may appoint a guardian for an adult with impaired capacity for personal matters to make particular decisions and do particular other things for the adult in relation to the matters; and

Note—

Personal matters do not include special personal matters or special health matters—schedule 2, section 2.
(b)the tribunal may appoint an administrator for an adult with impaired capacity for financial matters to make particular decisions and do particular other things for the adult in relation to the matters; and
(c)the tribunal may consent to the withholding or withdrawal of a life-sustaining measure and to particular special health care.

Note—

However, the tribunal may not consent to electroconvulsive therapy or a non-ablative neurosurgical procedure—Guardianship and Administration Act 2000, section 68(1).
(2)The Guardianship and Administration Act 2000 also provides a scheme for health care and special health care for adults with impaired capacity for the matter concerned, including an order of priority for dealing with health care and special health care.

Note—

See the Guardianship and Administration Act 2000, sections 65 and 66.
(3)The Guardianship and Administration Act 2000 also provides for the public advocate.
(4)If there is an inconsistency between this Act and the Guardianship and Administration Act 2000, the Guardianship and Administration Act 2000 prevails.

s 6A ins 2000 No. 8s 263sch 3

amd 2001 No. 95s 23; 2014 No. 26s 264; 2016 No. 5 s 915

6BRelationship with Public Guardian Act 2014

This Act is to be read in conjunction with the Public Guardian Act 2014 which provides for the public guardian and the community visitor (adult) program.

s 6B ins 2014 No. 26s 265

Chapter 2 Powers of attorney other than enduring powers of attorney

Part 1 Introduction

7Application of ch 2

(1)This chapter does not apply to enduring powers of attorney.
(2)Except where otherwise provided, this chapter applies to all other powers of attorney made, whether under this Act or otherwise, after the commencement of this Act.

Note—

A general power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney made under this Act—section 163.

For provisions applying to attorneys, see chapter 5 (Exercising power for a principal), part 1 (Provisions applying to attorneys).

8Powers of attorney

By a general power of attorney made under this Act, a person (principal) may—
(a)authorise 1 or more other persons (attorneys) to do for the principal anything (other than exercise power for a personal matter) that the principal can lawfully do by an attorney; and

Note—

Only an attorney under an enduring power of attorney may exercise power for a personal matter for a principal.
(b)provide terms or information about exercising the power.

9When attorney’s power exercisable

(1)A principal may specify in a power of attorney a time when, circumstance in which, or occasion on which, the power is exercisable.
(2)However, if the power of attorney does not specify a time when, circumstance in which, or occasion on which, the power is exercisable, the power becomes exercisable once the power of attorney is made.

10Powers of attorney given as security

(1)A power of attorney given as security is a power of attorney (other than an enduring power of attorney)—
(a)whether made under this Act or otherwise and whether made before or after the commencement of this Act; and
(b)given by a principal as security for a proprietary interest of the attorney or the performance of an obligation owed to the attorney; and
(c)that states it is irrevocable.
(2)Despite chapter 2, part 3, a power of attorney given as security is incapable of revocation except with the consent of the attorney while—
(a)the attorney has the proprietary interest, or persons deriving title to the interest under the attorney have the proprietary interest, secured by the power of attorney; or
(b)the obligation, the performance of which is secured by the power of attorney, remains undischarged.

Note—

Also, revocation by attorney provisions dealing with revocation because of impaired capacity, bankruptcy or insolvency or death of an attorney (sections 22 to 24) do not apply to powers of attorney given as security.
(3)A power of attorney given as security for a proprietary interest may be given to—
(a)the person entitled to the interest and the persons deriving title under the person to the interest; or
(b)a representative of a person mentioned in paragraph (a) who may be a specified officer, or the holder of a specified office, by reference to the title of the office concerned.

Note—

office includes position—see the Acts Interpretation Act 1954, schedule 1.
(4)The persons deriving title are taken to be attorneys of the power of attorney for all purposes.
(5)Subsection (4) does not affect a right in the power of attorney to appoint substitute attorneys.
(6)The power of a registered proprietor under the Land Title Act 1994 to revoke a power of attorney is subject to this section.

Part 2 Making a power of attorney other than an enduring power of attorney

11Form of general power of attorney made under Act

A general power of attorney made under this Act must be in the approved form.

Note—

An approved form is a form approved by the chief executive under section 161—schedule 3 (Dictionary). Strict compliance with the form is not necessary and substantial compliance is sufficient—Acts Interpretation Act 1954, section 48A (Compliance with forms).

12Execution of powers of attorney

(1)This section does not apply to a power of attorney created by and contained in another instrument, for example, a mortgage or lease, that is signed by, or by direction of, the principal.
(2)An instrument creating a power of attorney must be signed by, or by direction and in the presence of, the principal.
(3)This section does not affect—
(a)a requirement in or having effect under another Act about witnessing of instruments creating powers of attorney; or
(b)the rules about the execution of instruments by corporations.

13Appointment of 1 or more attorneys

(1)By a general power of attorney made under this Act, a principal may—
(a)appoint 1 attorney, or more than 1 attorney, being joint or several, or joint and several, attorneys; and
(b)appoint as attorney—
(i)a person by name; or
(ii)a specified officer, or the holder of a specified office, by reference to the title of the office concerned.

Note—

office includes position—see the Acts Interpretation Act 1954, schedule 1.
(2)If a specified officer or the holder of a specified office is appointed as an attorney—
(a)the appointment does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the appointment was made ceases to be the officer or the holder of the office; and
(b)the power may be exercised by the person for the time being occupying or acting in the office concerned.

14Proof of power of attorney

(1)A power of attorney may be proved by a copy of the power of attorney certified under this section.
(2)Each page, other than the last page, of the copy must be certified to the effect that the copy is a true and complete copy of the corresponding page of the original.
(3)The last page of the copy must be certified to the effect that the copy is a true and complete copy of the original.
(4)Certification must be by 1 of the following persons—
(a)the principal;
(b)a justice;

Note—

justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1.
(c)a commissioner for declarations;
(d)a notary public;
(e)a lawyer;

Note—

lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1.
(f)a trustee company under the Trustee Companies Act 1968;
(g)a stockbroker.
(5)If a copy of a power of attorney has been certified under this section, the power of attorney may also be proved by a copy, certified under this section, of the certified copy.
(6)This section does not prevent a power of attorney being proved in another way.
(7)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

Part 3 Revoking a power of attorney other than an enduring power of attorney

Division 1 Introduction

15Relationship with other law

This part does not limit the events by which, or circumstances in which, a power of attorney is revoked orally or in another way or terminated by implication or operation of law.

Division 2 Revocation by principal

16Advice of revocation

If a power of attorney is revoked under this division, the principal must take reasonable steps—
(a)to advise all attorneys affected by the revocation; and
(b)for a power of attorney registered in the power of attorney register—to deregister it.

17Written revocation

(1)If a power of attorney is or becomes revocable, it may be revoked by an instrument in the approved form executed in the same way as the power of attorney.
(2)Subsection (1) does not affect the rules about the execution of instruments by corporations.
(3)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

18Impaired capacity

(1)If a principal becomes a person who has impaired capacity, the power of attorney is revoked.

Note—

However, for a power of attorney given as security, see section 10.
(2)However, if a principal becomes incommunicate, the court may by order confirm that, from the date of the order, all or part of the power of attorney remains in full force and effect if the court is satisfied that the confirmation is for the benefit of the principal.
(3)For this section, a person becomes incommunicate if the person becomes incapable of communicating decisions about the person’s financial, property or legal affairs in some way.

19Death

When a principal dies, the power of attorney is revoked.

Division 3 Revocation according to terms

20According to terms

A power of attorney is revoked according to its terms.

Examples—

1If a power of attorney is expressed to operate for or during a specified period, it is revoked at the end of the period.
2If a power of attorney is expressed to operate for a specific purpose, it is revoked when the purpose is achieved.

Division 4 Revocation by attorney

21Resignation

If an attorney resigns, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

An attorney may resign by signed notice to the principal—section 72(1).

22Impaired capacity

If an attorney becomes a person who has impaired capacity, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

However, for a power of attorney given as security, see section 10.

23Bankruptcy or insolvency

(1)If an individual attorney becomes bankrupt or insolvent or takes advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

However, for a power of attorney given as security, see section 10.
(2)If a corporate attorney is wound up or dissolved or a receiver (other than a receiver for a limited purpose) or administrator is appointed of the attorney, the power of attorney is revoked to the extent it gives power to the attorney.

Example—

X is an attorney under a power of attorney that is not given as security. X becomes bankrupt. Therefore, the power of attorney is revoked to the extent it gives power to X.

If X was a joint and several attorney with Y, the power of attorney is only revoked to the extent it gives power to X. Y can continue to exercise the power.

The same applies if X was a joint attorney with Y because of section 59A.

If X was not a joint and several attorney and the power of attorney gives power to an alternative or successive attorney, the alternative or next attorney may then exercise power.

If none of these apply, no-one is able to exercise power under the power of attorney.

s 23 amd 2004 No. 43s 3 sch

24Death

When an attorney dies, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

See section 59A (Effect of power ending).

s 24 amd 2004 No. 43s 3 sch

Part 4 Other provisions

25Registration of powers of attorney and instruments revoking powers

(1)A power of attorney may be registered.
(2)An instrument revoking a power of attorney may be registered.
(3)Subject to another Act or a contrary intention in the power of attorney, if the power of attorney has been registered under an Act, it does not cease to authorise the attorney to do for the principal anything relevant to the purpose for which it was registered until an instrument revoking the power of attorney has been registered.
(4)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

26Offence to dishonestly induce the making or revocation of power of attorney

(1)A person must not dishonestly induce a person to make or revoke a power of attorney.

Maximum penalty—200 penalty units.

(2)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

Chapter 3 Enduring documents

Part 1 Application and interpretation

27Application of ch 3

Except where otherwise provided, this chapter applies only to enduring documents.

28Meaning of enduring document

An enduring document is an enduring power of attorney or an advance health directive.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

29Meaning of eligible attorney

(1)An eligible attorney, for a matter under an enduring power of attorney, means—
(a)a person who is—
(i)at least 18 years; and
(ii)not a paid carer, or health provider, for the principal; and

Note—

paid carer and health provider are defined in schedule 3 (Dictionary).
(iii)not a service provider for a residential service where the principal is a resident; and
(iv)if the person would be given power for a financial matter—not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(b)the public trustee; or
(c)a trustee company under the Trustee Companies Act 1968; or
(d)for a personal matter only—the public guardian.
(2)An eligible attorney, for a matter under an advance health directive, means—
(a)a person who has capacity for the matter who is—
(i)at least 18 years; and
(ii)not a paid carer, or health provider, for the principal; or

Note—

paid carer and health provider are defined in schedule 3 (Dictionary).
(b)the public trustee; or
(c)the public guardian.

s 29 amd 2004 No. 43s 91; 2014 No. 26s 266

30Meaning of eligible signer

(1)An eligible signer, to sign a document for a principal, is a person who—
(a)is at least 18 years; and
(b)is not the witness for the document; and
(c)is not an attorney of the principal.
(2)To avoid any doubt, it is declared that a person is not excluded from being an eligible signer merely because the person is an attorney’s employee who signs the document while acting in the ordinary course of employment.
(3)In this section—
attorney, for a document, means—
(a)a person who is an attorney of the principal whether under the document or otherwise; or
(b)if the document is all or part of an enduring document—a person who will be an attorney of the principal under the enduring document.

31Meaning of eligible witness

(1)An eligible witness, for a document, is a person who—
(a)except for a document revoking an advance health directive—is a justice, commissioner for declarations, notary public or lawyer; and

Note—

justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1.

lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1.

(b)is not the person signing the document for the principal; and
(c)is not an attorney of the principal; and
(d)is not a relation of the principal or a relation of an attorney of the principal; and
(e)if the document gives power for a personal matter—is not a paid carer or health provider of the principal; and
(f)for an advance health directive—is at least 21 years and not a beneficiary under the principal’s will.
(2)To avoid any doubt, it is declared that a person is not excluded from being an eligible witness merely because the person is an attorney’s employee who is the witness for the document while acting in the ordinary course of employment.
(3)In this section—
attorney, for a document, means—
(a)a person who is an attorney of the principal whether under the document or otherwise; or
(b)if the document is all or part of an enduring document—a person who will be an attorney of the principal under the enduring document.

Part 2 Enduring power of attorney provisions

32Enduring powers of attorney

(1)By an enduring power of attorney, an adult (principal) may—
(a)authorise 1 or more other persons who are eligible attorneys (attorneys) to do anything in relation to 1 or more financial matters or personal matters for the principal that the principal could lawfully do by an attorney if the adult had capacity for the matter when the power is exercised; and

Note—

personal matters includes health matters but does not include special personal matters or special health matters—schedule 2, section 2.
(b)provide terms or information about exercising the power.
(2)An enduring power of attorney giving power for a matter is not revoked by the principal becoming a person with impaired capacity for the matter.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

33When attorney’s power exercisable

(1)A principal may specify in an enduring power of attorney a time when, circumstance in which, or occasion on which, a power for a financial matter is exercisable.
(2)However, if the enduring power of attorney does not specify a time when, circumstance in which, or occasion on which, power for a financial matter becomes exercisable, the power becomes exercisable once the enduring power of attorney is made.
(3)Also, if—
(a)a time when, circumstance in which, or occasion on which, power for a financial matter is exercisable is specified; and
(b)before the specified time, circumstance or occasion, the principal has impaired capacity for the matter;

power for the matter is exercisable during any or every period the principal has the impaired capacity.

(4)Power for a personal matter under the enduring power of attorney is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise.

Note—

However, the priority of an attorney’s power for a health matter is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(4).
(5)If an attorney’s power for a matter depends on the principal having impaired capacity for a matter, a person dealing with the attorney may ask for evidence, for example, a medical certificate, to establish that the principal has the impaired capacity.

s 33 amd 2000 No. 8s 263sch 3

34Recognition of enduring power of attorney made in other States

If an enduring power of attorney is made in another State and complies with the requirements in the other State, then, to the extent the powers it gives could validly have been given by an enduring power of attorney made under this Act, the enduring power of attorney must be treated as if it were an enduring power of attorney made under, and in compliance with, this Act.

Part 3 Advance health directive provisions

35Advance health directives

(1)By an advance health directive, an adult principal may—
(a)give directions, about health matters and special health matters, for his or her future health care; and
(b)give information about his or her directions; and
(c)appoint 1 or more persons who are eligible attorneys to exercise power for a health matter for the principal in the event the directions prove inadequate; and

Note—

Note this does not include a special health matter.
(d)provide terms or information about exercising the power.
(2)Without limiting subsection (1), by an advance health directive the principal may give a direction—
(a)consenting, in the circumstances specified, to particular future health care of the principal when necessary and despite objection by the principal when the health care is provided; and
(b)requiring, in the circumstances specified, a life-sustaining measure to be withheld or withdraw