Witnesses in QCAT

This factsheet provides information for people who intend, or are required to, give evidence or produce a document for proceedings before the Queensland Civil and Administrative Tribunal (QCAT). It sets out a witness’s rights and obligations under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

An enabling Act may have provisions that supersede the rules stated below. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

Notice to attend a hearing

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to attend at a stated hearing of a proceeding to give evidence (s 97(1)(a) QCAT Act).

Notice or order to produce documents or things

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to produce a stated document or other thing to the Tribunal (s 97(1)(b) QCAT Act).

The Tribunal may also make an order requiring a person to produce a document or thing to the Tribunal or to a party to the proceeding (s 63(1) QCAT Act).

The document or thing stated in the notice or order may be inspected, photographed, photocopied or otherwise recorded by a party to the proceedings unless the Tribunal orders otherwise (Rule 80(3) QCAT Rules).

A person the subject of the order or notice is not required to attend the hearing unless the Tribunal orders otherwise or the person has been given notice under s 97(1)(a) to attend the hearing (Rule 80(2) QCAT Rules).

Witness entitlements

A person who attends a hearing or produces a document in accordance with the written notice issued by the Tribunal under s 97 is entitled to be paid the fees and allowances prescribed by regulation (s 97(4) QCAT Act). See regulations 11 to 16 of the Queensland Civil and Administration Tribunal Regulation 2009 (Qld) for more information.

These fees and allowances are to be paid:

• if the written notice was issued upon application by a party – by the party who made the application; or
• if the written notice was made by the Tribunal on its own initiative – by all of the parties in the proportions decided by the Tribunal (s 97(45) QCAT Act).

Giving evidence

At a hearing, evidence of a witness may be given orally or in writing, and, if the Tribunal directs, on oath or by affidavit (s 95(4) and 98(1)(b) QCAT Act). The Tribunal may also permit a witness to give evidence by tendering a written statement, verified, if the Tribunal directs, by oath (s 57(3) QCAT Act).

However, a child cannot be compelled to take an oath (s 945(6) QCAT Act).

Cross examination

The object of cross-examination is to qualify, weaken or destroy the opponent’s case and, potentially, establish your own case.

Each party must be given a reasonable opportunity to examine, cross-examine and re-examine each witness (s 95(1) QCAT Act).

However, the Tribunal may refuse or limit cross-examination if the Tribunal considers there is already sufficient evidence before the Tribunal about the matter and the evidence has been sufficiently tested by cross-examination (s 95(2)(b) QCAT Act).

In expedited hearings, cross-examination and re-examination of witnesses is at the discretion of the Tribunal, subject to the QCAT Rules (ss 95(2)(c) and 94 QCAT Act).

The Tribunal also has the power to place time limits on the giving of evidence and on the examination, cross-examination and re-examination of witnesses (s 95 (3) QCAT Act).

Tribunal powers in relation to witnesses

The Tribunal can call any person to give evidence on the Tribunal’s own initiative (s 98(1) QCAT Act).

The Tribunal may also:

• examine a witness on oath, or require a witness to give evidence by affidavit.
• examine or cross-examine a witness to the extent the Tribunal considers it appropriate to obtain information relevant to performing its functions in the proceedings,
• compel a witness to answer questions the Tribunal considers relevant to the proceeding (s 98(1) QCAT Act).

However, the Tribunal may not compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question, for example, where the answer might incriminate the person (s 98(2) and (3) QCAT Act).

Proceedings where witnesses are not needed

The Tribunal may decide to conduct part or all of the proceeding by solely relying on the documents the parties have lodged with the Tribunal. In those circumstances, witnesses need not appear at the hearing. The parties and their representatives are also excused (s 32 QCAT Act).

Treatment of vulnerable witnesses

Tribunal obligations to conduct proceedings sensitively

The Tribunal has an obligation to take reasonable steps to understand the actions, views and assertions of a witness in the proceeding, having regard to the witness’s age, any disability, and cultural, religious and socioeconomic background (s 29(1)(b) QCAT Act).

The Tribunal must also take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of the assertions (s 29(1)(a) QCAT Act). This would include ensuring that each party understands the material evidence being presented by each witness.

The Tribunal is also required to ensure that the conduct of proceedings is responsive to:

• cultural diversity and the needs of a witness who is from another culture, or linguistic background or is an Aboriginal person or Torres Strait Islander;
• the needs of a witness who is a child or a person with impaired capacity or a physical disability (s 29(1)(c) QCAT Act).

See for example, Smith v Condie t/a Listonia Landscaping [2010] QCAT 256.

Interpreters and support people

Unless the Tribunal directs otherwise, a witness to a proceeding may be helped by an interpreter or other person to help the witness to understand the proceeding (s 44 QCAT Act). For example, the witness may be helped by someone with appropriate cultural or social knowledge and experience.

At a private hearing, the Tribunal is required to ask each witness if that witness needs a support person for giving evidence. If the witness confirms that they do need a support person, the Tribunal must allow the support person to attend the hearing with the witness. However, the support person must not represent the party and must not be a party to the proceeding (s 91 QCAT Act).

If the support person is also to be a witness at the hearing, they may be directed to only attend the hearing at certain times (s 91(4) QCAT Act).

Special witnesses

There exist a number of different types of orders that the Tribunal may make where a special witness is giving evidence at a hearing: see s 99 QCAT Act. Section 99 does not apply to guardianship and administration matters: see s 101 GAA Act.

A special witness is a witness who is a child or another person who the Tribunal considers likely, if the person is required to give evidence, to:

• be disadvantaged as a witness because of the person’s mental, intellectual or physical impairment or a relevant matter, such as the person’s age, education, level of understanding, cultural background, relationship with a party to the proceeding or the subject matter of the evidence; or
• suffer severe emotional trauma; or
• be so intimidated as to be disadvantaged as a witness (s 99(4) QCAT Act).

The various orders that the Tribunal may make in relation to a special witness include:

• that only particular people may be present when the special witness gives evidence;
• that only particular people may ask questions of the special witness;
• that the questioning of the special witness must be restricted to a stated time limit;
• that a particular person must be obscured from the view of the special witness while the special witness is giving evidence;
• that a particular person must be excluded from the place where the hearing is held while the special witness is giving evidence;
• that the special witness must give evidence in a place other than where the hearing is held and in the presence of only stated people or with stated people being excluded from the room;
• that a person, including, for example, a support person (see below), must be present while the special witness is giving evidence to give emotional support to the special witness;
• that an audiovisual record of the evidence given by the special witness be made and that the record be viewed and heard at the hearing instead of the special witness giving direct testimony at the hearing (s 99(2) QCAT Act).

A person can apply for one of these orders or they can be made on the Tribunal’s own initiative (s 99(3) QCAT Act).

Non-publication orders

Generally speaking, the QCAT file and hearings are a matter of public record.

A non-publication order prohibits the publication of the contents of a document, evidence given at the Tribunal or information which identifies a person who has appeared or is affected by the proceeding. It may be made on the application of a party or upon the Tribunal’s own initiative (s 66(1) QCAT Act).

The Tribunal may only grant a non-publication order if it considers the order is necessary:

• to avoid interference with the proper administration of justice;
• to avoid endangering the physical or mental health or safety of a person;
• to avoid offending public decency or morality; or
• to avoid the publication of confidential information or other information which would be contrary to the public interest; or
• for any other reason in the interests of justice (s 66(2) QCAT Act).

See for example, Medical Board of Queensland v Mallon [2010] QCAT 311, where the Tribunal granted a non-publication order to protect names of patients, but not the medical practitioner who was the subject of disciplinary proceedings.

Offences and enforcement

Failure to appear

It is an offence for a witness not to attend a Tribunal hearing if they have been issued a notice by the Tribunal under s 97 of the QCAT Act without reasonable excuse (s 214(1) QCAT Act).

If a witness does not attend, then the Tribunal has the power to issue a warrant directing a police officer to bring the person at the time and to the place stated in the warrant to give evidence. The proceedings may be adjourned until then (s 215 QCAT Act). The warrant should be carried out by the police officer in accordance with the requirements under the Police Powers and Responsibilities Act 2000 (Qld), in particular sections 21 (General power to enter to arrest or detain someone or enforce warrant) and 615 (Power to use force against individuals).

A person who fails to appear at a hearing may be the subject of contempt proceedings.

Failure to follow directions

A person appearing as a witness at a hearing of a proceeding must not:

• fail to take an oath when required by the Tribunal; or
• fail, without reasonable excuse, to answer a question the person is required to answer by the Tribunal; or
• fail, without reasonable excuse, to produce a document or other thing the person is required to produce by a notice under section 97 (s 214(2) QCAT Act).

It is a reasonable excuse not to answer a question or produce a document where that information would tend to incriminate the person (s 214(3) QCAT Act). This right is further preserved in section 237(9) of the QCAT Act.

Failure to follow directions is an offence and may result in contempt proceedings.

False and misleading information

Any person, including witnesses, must not say anything or give any document containing information that the person knows to be false or misleading to a Tribunal official. A Tribunal official includes registry staff but does not include a conciliator or mediator (s 216 QCAT Act).

However, a person will not have committed an offence if the person when giving a document tells the official how it is false and misleading and, if the person has or can reasonably obtain the correct information, gives the correct information.

Giving false or misleading information may result in contempt proceedings.

Influencing a witness

It is an offence to improperly influence, or attempt to improperly influence, a witness (s 217 QCAT Act).

Contravention of this provision may result in contempt proceedings.

Contempt of the Tribunal

In addition to the above, a person is in contempt of the Tribunal if they:

• insult a tribunal member, adjudicator, registrar or registry staff member;
• obstruct or assault a person attending a proceeding;
• obstruct or hinder a person from complying with a decision of the tribunal;
• unreasonably interrupt a proceeding or otherwise misbehaves;
• create or continue a disturbance in or near a place where the Tribunal is sitting;
• contravene an undertaking they have given to the Tribunal (s 218(1) QCAT Act).

Children are not in contempt if their actions relate to proceedings which are reviewing a decision about the child (s 218(2) QCAT Act).

The Tribunal has the ability to invoke all the protection, powers, jurisdiction and authority the Supreme Court has in relation to contempt (s 219 QCAT Act). This includes fines, exclusion from the hearing and imprisonment.

This resource is current as of 21 February 2024

Hearings in the Queensland Civil and Administrative Tribunal

This factsheet sets out some rules and procedures which generally apply to Queensland Civil and Administrative Tribunal (QCAT) hearings. It may be useful for people who are preparing to go to a QCAT hearing and would like some information on what to expect.

The following information refers to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

 

Who will be at my hearing?

The Tribunal

The Tribunal may comprise of 1 to 3 members depending on the nature of the case. This may include a judicial member, that is, a member who is a Supreme Court or District Court judge. The composition of the Tribunal is carefully selected by the President, taking into account the nature, importance, complexity and special knowledge required for the matter (ss 165 and 167 QCAT Act).

Interpreters and support persons

Interpreters are allowed for parties or witnesses who have trouble understanding English.

A party or a witness may also be helped by another person to help them understand the proceedings. For example, the other person may be someone with appropriate cultural or social knowledge and experience (s 44 QCAT Act).

If the hearing is to be held in private, the Tribunal will allow each party and witnesses a support person to attend the hearing if they require one (s 91 QCAT Act).

Lawyers

As a general rule, parties before QCAT are self-represented unless the interest of justice require otherwise (s 43(1), QCAT Act).

However, the following categories of people are allowed representation as of right:

1. Children;
2. Persons with impaired capacity; and
3. Parties in a disciplinary proceeding.

A person may also be represented if another Act or the QCAT rules state the person may be represented. The Tribunal can also give its permission for a party to be represented (s 43 QCAT Act).

A representative must be a lawyer, unless the Tribunal otherwise agrees (s 43(4) QCAT Act).

See our factsheet Representation in QCAT for more information.

The public

Under s 90 of the QCAT Act, hearings must be held in public. This provision does not apply to guardianship and administration matters, although those matters as a general rule are also to be held in public: see ss 101 and 105 of the GAA Act.

However, a hearing (or part of a hearing) may be held in private if the Tribunal considers it necessary in the following circumstances:

• To avoid interfering with the proper administration of justice;
• To avoid endangering the physical or mental health or safety of a person;
• To avoid offending public decency or morality;
• To avoid the publication of confidential information or information whose publication would be contrary to public interest; or
• For any another reason in the interests of justice (s 90(2) QCAT Act).

What if I don’t go to my hearing?

In the event that a person, who has been given adequate notice of the hearing, fails to turn up or cannot be found after reasonable enquiries have been made, the Tribunal may hear and decide the matter in that person’s absence, even if that person is a party to the matter (s 93 QCAT Act).

What rules apply to my hearing?

Procedure generally

Subject to the QCAT Act, enabling Acts and rules, the procedure for QCAT proceedings are at the discretion of the Tribunal (s 28(1) QCAT Act).

The objects of the QCAT Act include:

• To have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick (s 3(b) QCAT Act).

The functions of the Tribunal include:

• To encourage the early and economical resolution of disputes including, if appropriate, through alternative dispute resolution processes;
• To ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice; and
• To ensure the Tribunal is accessible and responsive to the diverse needs of people who use the Tribunal (s 4 QCAT Act).

In all proceedings, the Tribunal must:

• Act fairly and according to the substantial merits of the case;
• Observe the rules of natural justice;
• Act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling act or the rules and a proper consideration of the matters before the Tribunal permit;
• Ensure so far as practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts;
• Take reasonable steps to ensure each party understands the practices and procedures of the Tribunal, the nature of allegations made in the proceedings and the decision of the Tribunal; and
• Ensure proceedings are responsive to cultural diversity, Aboriginal tradition and Island custom and the needs of a party who is a child or a person with impaired capacity or a physical disability (ss 28 and 29 QCAT Act).

See for example, Thackham v Dunne & Sweeney [2010] QCATA 109.

Giving evidence

The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate (s 28(3) QCAT Act).

The Tribunal must allow all parties a reasonable opportunity to:

• Call or give evidence;
• Examine, cross-examine and re-examine witnesses; and
• Make submissions to the Tribunal.

However, the Tribunal has a discretion to limit these rights if the Tribunal considers there is already sufficient evidence about the matter before the Tribunal.

Evidence can be given orally or in writing and may be required to be given under oath or by affidavit (s 95 QCAT Act).

You may need to compel witnesses to give evidence to support your case. For more information about witnesses, please see Witnesses in QCAT.

Prohibited conduct

It is important that your conduct in the Tribunal is respectful and does not unnecessarily disadvantage another party to the proceedings. See Unmeritorious proceedings and conduct causing disadvantage in QCAT for information about the risks in conducting your matter in a way that is unfair.

This resource is current as of 21 February 2024

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

The Queensland Civil and Administrative Tribunal (QCAT) only has jurisdiction to hear a matter if it is authorised to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or another piece of legislation. These other pieces of legislation are often referred to as “enabling Acts”.

When legislation gives authority to QCAT to hear a matter it will specify the “jurisdiction” QCAT must exercise in relation to the matter. QCAT has 3 types of jurisdiction:

1. Original jurisdiction;
2. Review jurisdiction; and
3. Appeal jurisdiction.

Each jurisdiction has its own purpose, rules and procedures and powers.

This fact sheet summarises the three types of jurisdictions conferred on QCAT.

Original Jurisdiction

What does “original jurisdiction” mean?

Original jurisdiction means that QCAT is making a decision on the matter for the first time. In other words, where an application is made to the Tribunal under its original jurisdiction, no other body or person will have previously decided this matter.

When does the Tribunal exercise its original jurisdiction?

QCAT has original jurisdiction for:

1. Minor civil disputes; and
2. Matters conferred upon it by an enabling Act to decide a matter in the first instance. (s 10 QCAT Act).

Minor civil disputes are defined in s 12 of the QCAT Act. The Tribunal only has power to make orders to the value of $25,000 (or other amount as prescribed by regulation). (s 13(3) QCAT Act).

Examples of original jurisdiction conferred on QCAT by an enabling Act are:

• The Guardianship and Administration Act 2000 (Qld) which gives QCAT a number of functions including the consideration of applications for appointment of guardians and administrators (s 81 Guardianship and Administration Act 2000 (Qld)).
• The Anti-Discrimination Act 1991 (Qld) which entitles a complainant to require the Human Rights Commissioner to refer a complaint to QCAT if conciliation has failed (s 166 Anti-Discrimination Act 1991 (Qld)).

QCAT also exercises original jurisdiction where it is empowered by an enabling Act to review its own decisions. For example:

• The Guardianship and Administration Act 2000 (Qld) enables parties to apply for review of the appointment of a guardian, the appointment having been made by QCAT in the first instance;
• The Health Practitioner Regulation National Law Queensland empowers QCAT to review decisions where QCAT has decided that grounds for disciplinary action exist.

What are the powers of the Tribunal in exercising original jurisdiction?

The enabling Act conferring original jurisdiction will generally state the Tribunal’s functions in the jurisdiction, which may add to, vary or exclude the functions stated in the QCAT Act (ss 6(3) and 16 QCAT Act).

Who are the parties to a proceeding in the tribunal’s original jurisdiction?

• the applicant; or
• the person the subject of the proceedings, if any; or
• an intervener; or
• a person joined as a party to the proceeding; or
• any other person specified as a party under an enabling Act (s 39 QCAT Act).

Review Jurisdiction

What does “review jurisdiction” mean?

If QCAT has been conferred (or given) review jurisdiction, it means a decision has already been made, generally by a government or statutory agency and QCAT is required to step into the shoes of the original decision-maker and reconsider the decision. This sort of decision making may have previously been referred to as an “appeal”.

The purpose of the review is to ensure that the correct decision was made based on the facts of a case. This is to enhance the quality and consistency of decisions by decision makers and to enhance openness and accountability of public administration (s 3(d) and (e) QCAT Act).

When does the Tribunal exercise its review jurisdiction?

QCAT has review jurisdiction when it is conferred with power to review decisions originally made by another entity (s 17 QCAT Act).

The decision being reviewed is known as the reviewable decision and the entity which originally made the decision is known as the decision maker.

What are the powers of the Tribunal in exercising review jurisdiction?

In exercising review jurisdiction, the Tribunal has the power to:

• confirm or amend the original decision
• substitute its own decision; or
• set aside the decision and return the matter for reconsideration by the original decision-maker with any directions it considers appropriate (s 24 QCAT Act).

The Tribunal may also:

• invite the decision maker to reconsider the decision at any stage of the proceeding (s 23 QCAT Act);
• exercise all the functions of the original decision-maker in relation to the reviewable decision (s 19(c) QCAT Act); and
• exercise the functions conferred upon it by the QCAT Act or the enabling Act (s 19(b) QCAT Act).

How does the Tribunal approach its task of reviewing a decision?

The purpose of the review is to produce the correct or preferable decision. This is done by way of a fresh hearing on the case’s merits (s 20 QCAT Act). A decision must be made in accordance with the QCAT Act and the enabling Act (s 19(1) QCAT Act).

To this end, the original decision-maker is required to assist the Tribunal to the best of their ability, including, for example, providing the Tribunal with a copy of the reasons for decision and any documents in the decision maker’s possession or control that may be relevant to the tribunal’s review of the decision, within 28 days of being given a copy of the application (s 21 QCAT Act).

A detailed consideration of the Tribunal’s approach to reviewing a decision is provided in Queensland Racing Ltd v McMahon [2010] QCATA 73.

How does a review affect the original decision?

The start of proceedings to review a decision does not affect the original decision unless otherwise stated in an enabling Act or unless QCAT specifically makes an order to stay the original decision.

An order to stay the original decision stops it from being implemented. A stay may be ordered upon application by a party or on the Tribunal’s own initiative.

In making a stay order, the Tribunal must have regard to:

1. The interests of any person who will be affected by the making of the order or the order not being made (but who may not be given an opportunity to make submissions if that is not practicable).
2. Any submission made to the Tribunal by the original decision-maker; and
3. The public interest.

The Tribunal may also require an undertaking as to costs or damages, or may impose certain conditions, or may provide for the lifting of the order if stated circumstances occur (s 22 QCAT Act).

Inviting the original decision maker to reconsider the decision

The Tribunal may invite the original decision-maker to reconsider their decision before the review proceedings have been completed. The decision-maker then has 28 days to reconsider their decision and either confirm, amend or substitute their original decision.

The review proceedings will then continue, based on the affirmed, amended or substituted decision, unless the applicant withdraws their application (s 23 QCAT Act).

Who are the parties to a proceeding in the Tribunal’s original jurisdiction?

• The applicant;
• The decision-maker for the reviewable decision (named using their official description, rather than their personal name);
• An intervener;
• A person joined as a party to the proceedings; and
• Any other person specified as a party under an enabling Act (s 40 QCAT Act).

Appeal Jurisdiction

What does “appeal jurisdiction” mean?

The appeal jurisdiction refers to a situation where another entity or QCAT itself has made a decision and there are provisions that allow an appeal to be lodged with the Tribunal.

If the Tribunal is to sit in its appeal jurisdiction, it will usually be constituted by 1, 2 or 3 judicial members (s 166 QCAT Act). This is often referred to as the Appeal Tribunal.

When does the Tribunal exercise its appeal jurisdiction?

The Tribunal has jurisdiction to hear:

• appeals against its own decisions under s 142 of the QCAT Act; and
• appeals against the decisions of other entities under an enabling Act (s 25 QCAT Act).

Generally speaking, a decision of QCAT may be appealed to the Appeal Tribunal under s 142 where:

• A judicial member did not constitute the Tribunal in the proceeding;
• The decision does not relate to a cost-amount decision (an amount ordered to be paid under a costs order); and
• The decision does not relate to the decision of a registrar to accept or reject an application or referral made to the Tribunal.

In certain circumstances it is necessary to get the Appeal Tribunal’s permission to appeal, which is called “getting leave”. The Appeal Tribunal’s leave is required to appeal:

• A minor civil dispute decision;
• An interim or preliminary decision;
• A costs order; and
• An appeal involving a question of fact.

Please see the Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal factsheet for more information.

What are the powers of the Tribunal in exercising appeal jurisdiction?

Please see the heading Powers and procedure – Appeals to the Appeal Tribunal under the Appealing a QCAT decision factsheet under for more information.

Who are the parties to a proceeding in the tribunal’s appeal jurisdiction?

The parties to an appeal will be the same as the parties to the original decision.

This resource is current as of 21 February 2024

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Remedies for breaches by enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

Personal liability of enduring attorneys

When an enduring attorney exercises a power authorised by a principal, the attorney must exercise that power in a way that complies with relevant general principles and discharges the attorney’s duties (section 6C POA Act), (see EPA 2 – Power of enduring attorneys and EPA 3 – duties of enduring attorneys).

Generally, enduring attorneys are not personally liable for losses and liabilities incurred by a principal.

However, an attorney can be held personally liable if a loss incurred by a principal was caused by the attorney’s failure to discharge his or her duties when exercising a power conferred by the principal.

Statutory remedies under the POA Act

Right to compensation

If a principal incurs a loss because of the attorney’s breach of the POA Act, the principal or the principal’s estate (if the principal has died) has a right to seek compensation from the attorney for that loss (sections 106 and 107 POA Act).

• An application for a compensation order against an attorney under sections 106 or 107 POA Act is made to the Supreme Court. QCAT does not have jurisdiction to decide such application (Public Trustee of Queensland v BN and Ors (2011) QCAT 666).

• If the principal or attorney has died, the application for compensation must be made within 6 months after the death. That time limitation can be extended by the court in exceptional circumstances (section 106 POA Act).

• The court may relieve an attorney from all or part of the attorney’s personal liability for a loss if the court finds that:

• the attorney acted honestly; and
• the attorney acted reasonably; and
• it would be fair to excuse the attorney’s breach (section 105 POA Act).

• An attorney who is acting honestly would generally be found to be acting in good faith and in the principal’s interests. However, the attorney’s knowledge of a wrongdoing is not a necessary pre-requisite for a finding that an attorney acted dishonestly (Ede v Ede (2006) QSC 378).

Right to apply to QCAT or the Supreme Court to protect a principal’s interests

A principal, a member of the principal’s family, an attorney, the Public Guardian, the Public Trustee, or another person who has a sufficient and genuine concern for the rights and interests of the principal, can apply to QCAT or the Supreme Court for orders about something related to the POA Act (section 110 POA Act).

Direction, advice or recommendation

A principal or an interested person can apply for a direction, advice or recommendation about a matter related to the POA Act, including (section 118 POA Act):

• how the terms of an EPA should be interpreted;
• how an attorney’s power for a matter should be exercised; or
• to authorise an attorney to undertake a transaction that the attorney may not be authorised to undertake.

Declaration

A principal or an interested person can apply for a declaration about matters relating to an EPA, including about:

• a person’s capacity for a matter (section 111 POA Act);
• the validity or invalidity of an EPA (sections 113 POA Act); and
• whether an attorney’s power under an EPA has begun (section 115 POA Act).

Order

A principal or an interested person can apply for an order about something related to the POA Act, including:

• an order to remove a power from an attorney and give that power to another attorney or a new attorney;
• an order to change the terms of an EPA; or
• an order to revoke all or part of an EPA (section 116 POA Act).

This may happen, for example, if a court or the tribunal finds that the circumstances of a principal or other circumstances have changed and one or more terms of the EPA are no longer appropriate to protect the principal’s interests (section 117 POA Act).

Right to records and audit

If a principal or an interested party has genuine concerns about how an attorney for a financial matter is managing a principal’s finances, an application can be made to QCAT or the Supreme Court for:

• an order that the attorney provides a summary of receipts and expenditures for a specified period;
• an order that the attorney provides detailed accounts of dealings and transactions undertaken by the principal for a specified period;
• an order that the accounts provided be audited; or
• an order that the attorney present financial management plan for approval (section 122 POA Act).

Complaints to the Public Guardian

The Office of the Public Guardian (OPG) is an independent statutory body created under the Public Guardian Act 2014 (Qld) (PG Act) to protect the rights and interests of vulnerable Queenslanders, including adults with impaired capacity.

Investigative powers

The OPG can investigate a complaint or allegations that an adult with impaired capacity is being or has been neglected, exploited or abused, or that decision-making arrangements are inappropriate or inadequate (section 19 PG Act).

• Those investigative powers include:

• the power to require an attorney for a financial matter or an administrator to produce records and accounts (section 21 PG Act);
• the power to gain access to all information necessary to investigate a complaint (section 22 PG Act); and
• the power to summon a person to answer questions or produce documents or things (section 25 PG Act).

• Once an investigation is completed, the OPG issues a written report that can be used as evidence in legal proceedings or police investigations.

• The OPG may require that the costs of an investigation be paid by:

• the attorney or administrator if he or she has not acted as required by law; or
• the person making the complaint if the complaint is frivolous, vexatious or without good cause (section 29 PG Act).

Protective powers

The OPG also has power to protect an adult with impaired capacity, including by:

• suspending the operation of an EPA for up to 3 months if an attorney is not competent (section 34 PG Act);
• applying for interim orders to protect a principal’s rights and interests;
• applying for an entry and removal warrant if a principal is at immediate risk of harm (section 36 PG Act); and
• bringing a claim for damages or to recover possession of a property or payment of money wrongfully dealt with (section 33 PG Act).

Equitable remedies

In addition to the statutory remedies set out in the POA Act, in some cases an equitable remedy may be available to protect the interests of a principal. A claim for an equitable remedy may be made together with a claim for a statutory remedy.

Equity is a complex area of law. The courts consider many factors when determining if an equitable remedy should be granted to a person, including a lengthy delay in seeking a remedy and the conduct and circumstances of the parties involved when they entered into a transaction.

Below are examples of common equitable claims made in the context of EPAs. This is not an exhaustive list of equitable claims that may be available to protect a person’s interests.

Breach of fiduciary duty

• The relationship between a principal and an attorney gives rise to fiduciary duties owed by the attorney to the principal. These duties are inherent in the relationship of trust between an attorney and principal, which is also called a fiduciary relationship.

• If an attorney breaches a fiduciary duty, for example, by making a profit at the principal’s expense, an application can be made for an order holding the attorney accountable for the profit made in breach of a fiduciary duty.

 

For an example of equitable compensation awarded for a breach of fiduciary duty by an enduring attorney, see Smith v. Glegg (2004) QSC 443 (9 December 2004).

Unconscionable dealings

• A court may set aside a transaction if one party to that transaction is at a special disadvantage when compared to the other party, and the stronger party knew or ought to have known about it and takes an unfair advantage of that vulnerability to gain a benefit for himself or herself (Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447).

• The special disadvantage of a principal in comparison to an attorney may arise, for example, because of a principal’s age, impaired capacity, illness or lack of assistance or explanation if assistance or explanation would be necessary for the principal to make an informed decision about his or her interests.

• When considering a claim of unconscionable dealings, a court looks to the conduct of the stronger party trying to enforce a dealing or gain a benefit when dealing with a person with a special vulnerability.

Undue influence

A court may set aside a transaction procured by undue influence, which can arise as a matter of fact or where there is a presumption of undue influence between the parties that is not rebutted by evidence. For example, there is a presumption that in a conflict transaction between a principal and attorney (or between a principal and a relative, business associate, or close friend of the attorney), the attorney induced the principal to enter into that transaction by undue influence (section 87 POA Act). If that presumption is not rebutted by the principal, a court may set aside that conflict transaction.

• When considering a claim of undue influence, a court looks to the quality of the consent for a transaction given by a vulnerable party For an example of an order setting aside a transfer of a house as a result of undue influence and unconscionable dealing by an enduring attorney, see Gillespie v Gillespie & Ors (2012) QDC 212).

Implied trusts

• A trust is a legal relationship under which a person holds a legal interest in a property for the benefit of one or more beneficiaries and subject to certain duties.

Under exceptional circumstances, a court may make a declaration that a person’s legal interest in a property is held on trust for the benefit of another person. That could happen, for example, if it would be unconscionable to allow an enduring attorney to take an unfair advantage of a vulnerable principal who loaned the attorney money to buy a house on a promise that the principal could live in the home with the attorney.

For examples of cases where the court declared that the legal owner of a property held an interest on trust for another person, see Swettenham v Wild (2005) QCA 264 and Field v Loh & Anor (2007) QSC 350.

 

Unmeritorious complaints about enduring attorneys

• Before commencing legal proceedings, it is recommended that a person considers if alternative dispute resolution (ADR) would be an appropriate way to try to resolve a conflict or legal problem. In ADR, an impartial person assists those in disagreement to solve the issues between them (see Alternative Dispute Resolution).

• It is strongly recommended that a person obtains legal advice before making an application to QCAT or the Supreme Court.

• An application that is found to be frivolous, trivial, vexatious, misconceived or lacking in substance can be dismissed and an order for costs can be made against the applicant.

• An order can also be made prohibiting a person to make a new application about a matter without first obtaining authorisation from the court or tribunal (s 123 POA Act).

(see Unmeritorious proceedings and conduct causing disadvantage in QCAT; Costs orders in Queensland Courts)

This resource is current as of 30 June 2023

Duties of enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

General duties of enduring attorneys

An attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests (section 66 POA Act).

Duty to comply with general principles

The general principles set out in s 6C of the POA must be applied by a person or other entity that performs a function or exercises a power under the POA or an enduring document. The general principles include:

• An adult is presumed to have capacity for a matter.
• An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.
• Empower an adult to exercise the adult’s human rights and fundamental freedoms.
• An adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.
• The importance of maintaining an adult’s existing supportive relationships must be taken into account.
• The role of families, carers and other significant persons in and adult’s life to support the adult to make decisions should be acknowledged and respected.
• The important of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.
• For an adult who is Aboriginal or Torres Strait Islander, the importance of maintaining their cultural and linguistic environment and set of values must be taken into account.
• An adult’s privacy must be taken into account and respected.
• An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.
• An adult’s right to liberty and security on an equal basis with others must be taken into account.
• An adult should not be deprived of the adult’s liberty except in accordance with the law.
• An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.
• An adult must be given the support an access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.
• An adult must be given the support necessary to enable to adult to communicate the adult’s decisions.
• To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.
• An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
• An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.
• A person or other entity in performing a function or exercising a power under the POA in relation to an adult or other enduring document for an adult must do so in a way that promotes and safeguards the adult’s rights, interests and opportunities; and in the way that is least restrictive of the adult’s rights, interests and opportunities.
• A person or other entity in performing a function or exercising a power under the POA must recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and if possible, support the adult to make a decision.

 

Duty to comply with health care principle

An attorney exercising power for a health matter must also comply with the health care principle set out in s 6D of the POA Act.

When making decisions for a health matter, an attorney must also apply the general principles, as well as:

• the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and
• any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy and independence of persons.
• Taking into account information given by the adult’s health provider, the nature of the adult’s medical condition and prognosis, any alternative health care that is available, the nature and degree of any risks with proposed or alternative health care, whether health care can be postponed, the consequences for the adult if proposed health care is not carried out, consideration of the benefits versus burdens of the proposed health care; and the effect of the proposed health care on the adult’s dignity and autonomy.
• The wishes and views of an adult expressed when the adult had capacity in an advance health directive.

Duty to act in a principal’s best interests – an attorney must exercise a power granted by a principal in accordance with the terms of the EPA, and act honestly and with reasonable diligence to protect the principal’s interests (section 66 POA Act).

An attorney may be ordered to compensate the principal for losses or any other liability incurred by the principal as a result of the attorney’s failure to discharge this duty.

Duty of confidentiality

An attorney must not use confidential information gained by being an attorney, unless the attorney has a reasonable excuse or the use of such information is allowed by the POA Act (sections 74, 74A POA Act).

For example, an attorney may disclose confidential information about the principal’s affairs:

• If authorised or required under a regulation or another law;
• For a proceeding arising out of or in connection with this Act;
• If authorised by the person to whom the information relates;
• If authorised by the court or the tribunal in the interests of justice;
• If necessary to prevent a serious risk to a person’s life, health or safety; or
• For the purpose of obtaining legal or financial advice; or
• If reasonably necessary to obtain counselling, advice or other treatment; or
• In reporting a suspected offence to a police officer or assisting a police officer in the investigation of a suspected offence; or
• In assisting the public guardian, the public advocate or a public service officer in the performance of functions of the POA or Guardianship and Administration Act or Public Guardian Act.

Duty to avoid conflict transactions

All enduring attorneys must avoid acting if there is, or may be, a conflict of interests or a conflict of duties, unless the EPA or the principal authorised that action while the principal had capacity to do so. In that case, it is recommended that an attorney applies to QCAT or the Supreme Court for a direction about the conflicting matter.

Attorneys for financial matters have an additional duty not to enter into a transaction if there is, or may be, a conflict between a duty the attorney owes to the principal and the attorney’s interests (or the interests of a relation, business associate or close friend of the attorney) (section 73 POA Act).

There is a presumption that in a conflict transaction between a principal and attorney (or between a principal and a relative, business associate, or close friend of the attorney), the attorney induced the principal to enter into that transaction by undue influence (section 87 POA Act).

If a principal does not have capacity to authorise a conflict transaction entered into by the attorney, the attorney must seek the authority of QCAT or the Supreme Court before entering into such transaction.

Certain conflict transactions are authorised by the POA Act and may not need to be authorised by QCAT or the Supreme Court first, for example:

• certain dealings concerning property that is jointly owned between the attorney and principal (section 73(7) POA Act);
• if an attorney gives a gift or makes a donation on behalf of a principal in accordance with section 88 POA Act; or
• if an attorney provides for the needs of a principal’s dependants from the principal’s estate in accordance with section 89 POA Act. (See Powers of enduring attorneys)

Duty to keep records for financial matters

Attorneys for financial matters must keep accurate records and accounts of all dealings and transactions made on behalf of a principal (section 85 POA Act).

These records and accounts may be eventually audited by QCAT or the Supreme Court. It is recommended that attorneys for financial matters seek assistance from a book keeper or accountant to set up an appropriate recording system and budget for the principal if necessary.

A monthly statement of accounts is commonly used to record income and expenses incurred by a principal. Large expenses should be recorded separately and receipts for such expenses should be kept.

Duty to keep property separate

Attorneys for financial matters must keep their property separate from a principal’s property (section 86 POA Act), for example in separate bank accounts or storage places.

That obligation does not arise to property jointly owned by a principal and attorney before the EPA commenced. However, for jointly owned property, records must still be kept by the attorney clearly showing the principal’s share in the property.

This resource is current as of 30 June 2023

 

Powers of enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

General powers of enduring attorneys

• An attorney’s power for a matter is limited by the terms of the EPA granting that power.
• A principal can, for example, specify conditions and instructions in an EPA about when and how the attorney is to exercise a power given by the principal.

• A person should carefully read the EPA presented by the attorney to ensure he or she has the necessary power to act for the principal in a matter.

• Unless the EPA expressly states otherwise, an attorney is deemed to have maximum authority for a matter.

• If a principal does not want an attorney to have powers for all financial and personal matters, the EPA must expressly state for what matters the power is being granted. For example, if an EPA simply states “I appoint Mary as my attorney”, Mary has power for all financial and personal matters for the principal (s 77 POA Act).

• When an attorney exercises a power authorised by a principal, the attorney must exercise that power in a way that complies with relevant general principles and duties. (see Duties of enduring attorneys and Remedies for breaches by enduring attorneys)

Decisions that attorneys for all financial matters can make

Power for financial matters An attorney for all financial matters has power to make decisions for a principal about a number of financial and property matters, including one or more of the following (Schedule 2 POA Act):

• withdrawing from or depositing money into the principal’s bank account;
• paying maintenance and accommodation expenses for the principal;
• paying the principal’s debts;
• receiving and recovering money owed to the principal;
• carrying on a trade or business of the principal;
• performing contracts entered into by the principal;
• discharging a mortgage over the principal’s property;
• paying rates, taxes, insurance premiums or other outgoings for the principal’s property;
• preserving or improving the principal’s estate;
• undertaking a real estate transaction or a transaction involving the use of the principal’s property as security for the benefit of the principal; and
• legal matters relating to the principal’s financial or property matters.

Decisions that attorneys for all personal matters can make

Powers for personal matters An attorney for all personal matters has power to make decisions about a principal’s care and welfare, including for one or more of the following matters (Schedule 2 POA Act):

• daily issues such as diet, dress and general care;
• living, work and education arrangements for the principal;
• legal matters not relating to the principal’s financial or property matters (for example, applying for a domestic violence protection order for the principal);
• whether to consent to a forensic examination of the principal; and
• health care (other than special health care) by a health provider to diagnose, maintain and treat the principal’s physical and mental health.

When making health care decisions for a principal, an attorney must consider if the principal made an Advance Health Directive specifying the principal’s wishes about future health care. Directions made by the principal in an Advanced Health Directive will have priority over the attorney’s power for a health matter (section 35 POA Act).

If an EPA does not give an attorney power to make health care decisions for a principal, a statutory health attorney can make a decision for a principal with impaired capacity for a health matter (see GAA – Types of substituted decision making).

Decisions that attorneys for all personal matters cannot make

Special personal matters An attorney for all personal matters does not have power to make decisions for a principal about special personal matters regarding (Schedule 2 POA Act):

• making or revoking the principal’s will;
• making or revoking an enduring document of the principal;
• exercising a principal’s right to vote in a election or referendum;
• consenting to a principal’s marriage, civil partnership or sexual relationship, or to a dissolution of a marriage or civil partnership;
• adoption of a child of the principal;
• surrogacy arrangements for the principal;
• entering a plea on a criminal charge for the principal; and
• cultural recognition orders under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.

Special health matters An attorney for all personal matters does not have power to make decisions for a principal about special health matters regarding (Schedule 2 POA Act):

• removal of tissue from the principal while alive for donation to someone else;
• sterilisation and termination of a pregnancy;
• participation in special medical research or experimental health care;
• electroconvulsive therapy or psychosurgery; and
• special health care prescribed under the Guardianship and Administration Act 2000 (Qld).

Certain special personal matters and special health matters may be authorised by QCAT or the Supreme Court.

Other powers of enduring attorneys

Right to information An attorney can access all the information that the principal would have been entitled to access if the principal had capacity, if the attorney needs such information to make informed decisions authorised by the principal (section 81 POA Act).

Confidentiality If an attorney receives confidential information on behalf of a principal, the attorney must respect the principal’s right to confidentiality and only disclose such information to the extent necessary to protect the principal’s interests.

Execution of documents An attorney may execute a document on behalf of a principal, with the attorney’s own signature or seal, if that is necessary or convenient for the exercise of a power given to the attorney by the principal. The document must be executed in a way that shows that the attorney executed it as attorney for the principal (section 69 POA Act).

Reimbursement and remuneration An attorney is not entitled to remuneration or a wage for acting for a principal. However, an attorney is entitled to be reimbursed by the principal for reasonable out-of-pocket expenses incurred in performing the attorney’s duties (for example, photocopying charges and reasonable travelling expenses).

An attorney may not have the right to reimbursement for out-of-pocket expenses if:

• the attorney is acting in a way not authorised in the EPA;
• the attorney is in breach of his or her duties; or
• the expenses are not reasonable having regard to all circumstances, including the principal’s financial position.

Gifts An attorney can give a gift or donate on behalf of a principal only if (section 88 POA Act):

• the gift or donation is of the nature of the principal made when the principal had capacity; or
• of the nature the principal might reasonably be expected to make; and

the value of the gift is reasonable having regard to all circumstances, in particular the principal’s financial position.

 

An attorney who is named a beneficiary under a will of the principal is not entitled to the inheritance until after the principal’s death.

Certain gifts may be a conflict transaction that must be authorised by QCAT or the Supreme Court before they are given (EPA 3 – Duties of enduring attorneys).

Maintaining principal’s dependants – an attorney for financial matters may provide for the needs of a principal’s dependants from the principal’s estate. However, what is provided must not be more than what is reasonable having regard to all circumstances, in particular the principal’s financial position (section 89 POA Act).

Certain maintenance payments may be a conflict transaction that must be authorised by QCAT or the Supreme Court before they are made (see EPA – Duties of enduring attorneys).

Investments An attorney for financial matters can make an investment for a principal (section 84 POA Act):

• if the investment has been authorised by QCAT or the Supreme Court; or
• which, if the investment were of trust funds by a trustee, would be an investment by a trustee exercising a power of investment under the Trusts Act 1973, guided by the prudent person rule (see sections 22 to 24 of the Trusts Act 1973).

If when an EPA commences a principal already had investment arrangements in place, an attorney for financial matters can generally continue those investments (section 84 POA Act). However, the attorney must invest with reasonable diligence, making prudent financial decisions to protect the principal’s interests (section 66 POA Act).

Can an attorney’s power change after the EPA commences?

QCAT or the Supreme Court may make orders about the powers that a principal is granted to an attorney (Chapter 6, POA Act). This could occur, for example:

• if an attorney is not discharging his or her duties;
• if a guardian and/or administrator is appointed for the principal;
• if a principal did not have capacity to make the EPA;
• if an EPA does not comply with the requirements of the POA Act;
• if a principal was induced to make the EPA by dishonesty or undue influence; and
• if a principal’s or other circumstances have changed since the EPA was made and the terms of the EPA are no longer appropriate to protect the principal’s interests.

What if there is more than one attorney?

• An EPA can state how attorneys are to share the power given to them by the principal. For example, jointly (unanimously), severally (independently), jointly and severally, or by majority.
• If a principal appoints more than one attorney for a matter, and the EPA does not state how the attorneys are to share the power given to them, the attorneys are jointly appointed and must make decisions for the principal unanimously (section 78 POA Act).
• It is important to keep in mind that an EPA is an instrument created to protect the rights and interests of a principal. If an EPA is not working for a principal, for example because of a family conflict preventing joint attorneys from making decisions in a timely and objective manner, the powers of an attorney may be removed and an appropriate independent decision-maker may be appointed.

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Enduring power of attorney toolkit

This factsheet is part of a set of factsheets about enduring attorneys under the Powers of Attorney Act 1998 (Qld) (POA Act).

The factsheets in this series are:

EPA 1 – Enduring power of attorney toolkit

EPA 2 – Powers of enduring attorneys

EPA 3 – Duties of enduring attorneys

EPA 4 – Remedies for breaches by enduring attorneys

These factsheets do not relate to general powers of attorney or to decision making for children and minors.

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

What is an enduring power of attorney (EPA)?

• An EPA is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make decisions on the principal’s behalf.

• A valid EPA allows an authorised decision of an attorney to have the same legal effect as if the principal had made the decision (section 32 POA Act).

• An EPA is used to plan for a person’s future in case that person loses capacity to make certain decisions.

• An EPA is not revoked if a principal loses capacity for a matter.

• A general power of attorney differs from an EPA because a general power of attorney is revoked if a principal loses capacity. A general power of attorney is used while a person still has capacity to make decisions, for example if a person is overseas and needs to authorise an attorney to act on that person’s behalf.

Who can make an EPA?

• A person can make a valid EPA appointing an attorney if the person has capacity to understand the nature and effect of the EPA (section 41 POA Act).

• If a person does not have capacity to execute a valid EPA but needs assistance to make certain decisions, an application can be made to the Queensland Civil and Administrative Tribunal (QCAT) for guardianship and/or administration orders for that person (see GAA – Guardianship and Administration toolkit).

• If there is doubt about a person’s capacity, QCAT can make a declaration about whether or not that person has capacity to execute an EPA.

• A person cannot make an EPA if they do not have legal capacity.

Who can be an enduring attorney?

A person is only eligible to be appointed as an attorney under an EPA if:

• the person is at least 18 years; and
• the person is not a paid carer, health provider or a residential service provider for the principal; and
• for an EPA including financial matters, the person is not bankrupt or taking advantage of the laws of bankruptcy or similar legislation (section 29 POA Act).

A paid carer is someone who receives remuneration for services performed for the principal’s care (Schedule 3 POA Act). A person is not a paid carer for that purpose for receiving remuneration derived from:

• a carer payment or benefit from the Federal or State governments for providing home care for the principal (for example, a Centrelink Carer Allowance); or
• damages awarded by a court for gratuitous services performed for the principal’s care.

If a person does not have anyone suitable to be appointed as attorney, the person may appoint the Public Guardian and Public Trustee of Queensland as enduring attorneys for personal and financial matters, respectively.

How do I make an EPA?

There are a number of formal requirements for a valid EPA, including:

• the principal must have capacity to execute the EPA (section 41 POA Act);
• the EPA must be made in an approved form, by using either the EPA Short Form 2 or the EPA Long Form 3 published by the Queensland government, as the case may be;
• the EPA must be signed by the principal or an eligible signer (section 30 POA Act);
• the EPA must be signed and dated by an eligible witness (section 31 POA Act); and
• the EPA must be signed by the eligible attorney who accepted the appointment (section 44 POA Act).

Strict guidelines apply for witnessing an EPA. A person witnessing an EPA must certify that the principal seemed to have the necessary capacity to execute the EPA and understood the nature and likely effect of that document.

There are also a number of important factors that a person should consider before making an EPA including, for example, choosing an attorney who:

• is an honest and trustworthy person;
• understands the principal’s wishes and health care needs, and would make decisions consistent with these as much as possible;
• is responsible with money and competent to make financial decisions;
• would seek and consider professional advice when necessary; and
• has the necessary skills to act in accordance with legal requirements.

It is highly recommended that a person obtains legal advice before making an EPA or accepting an appointment as enduring attorney.

When does the power of an enduring attorney commence?

• For personal matters (including health matters), an attorney’s power only commences when the principal loses capacity to make those decisions independently (section 33 POA Act).

• For financial matters, a principal can specify in the EPA when, and under what circumstances, an attorney’s power commences. For example, the EPA could specify that an attorney’s power commences immediately, or commences only when the principal is diagnosed by a doctor to have lost capacity to make financial decisions.

• If an EPA is silent about when a power for a financial matter commences, the attorney’s power commences immediately after the EPA is validly executed.

• If an attorney’s power for a matter depends on the principal having impaired capacity for that matter, a person dealing with the attorney may ask for evidence of the principal’s impaired capacity, for example a medical certificate (section 33(5) POA Act).

• If there are concerns about whether an attorney’s power has commenced, an interested person may apply to QCAT or the Supreme Court for a declaration about a principal’s capacity and about whether an attorney’s power has begun (section 115 POA Act).

Can I register an EPA?

• If an EPA authorises an attorney to act in financial matters, and the attorney would likely act in a transaction involving land in Queensland, the EPA must be registered in the Power of Attorney Register of the Titles Registry (section 132 Land Title Act 1994 (Qld)).

• Only EPAs granting powers for financial matters can be registered. If an EPA relates only to personal matters, the EPA cannot be registered in the Titles Registry.

• It is recommended that the original EPA is kept by the principal in a safe place, and a certified copy of the EPA given to the attorney. The existence of an EPA can be proved by using a copy certified in accordance with section 45 POA Act.

• A principal should consider giving a certified copy of the EPA to trusted persons who should be informed of the EPA’s existence, such as the principal’s doctor, bank manager, lawyer, accountant and/or superannuation fund.

Can I resign as an attorney?

• While a principal has capacity for a matter, the attorney can resign as attorney for that matter by giving a signed written notice to the principal (section 72 POA Act).

• If a principal’s capacity for a matter is impaired, the attorney can only resign if authorised by QCAT or the Supreme Court (section 82 POA Act). In that case, the attorney should continue acting for the principal until new arrangements are put in place.

• If an attorney resigns, the EPA is revoked to the extent that it gives power to that attorney (s 55 POA Act).

Can I revoke my EPA?

• A principal can only revoke an EPA if the principal has capacity to make an EPA giving the same power (section 47 POA Act).

• Revocation of an EPA must be done in writing by executing the Revocation of Enduring Power of Attorney Form 6 published by the Queensland government.

• If a principal revokes an EPA, the principal must inform the attorneys of the revocation (section 46 POA Act).

• If an EPA is registered with the Titles Registry and is later revoked, the principal must also deregister the EPA by lodging a certified copy of the revocation form with the Titles Registry.

• It is recommended that a copy of the revocation form is provided to any party previously informed of the existence of the EPA, such as the principal’s doctor, bank manager, lawyer, accountant and/or superannuation fund.

Are there other ways to end an EPA?

A principal can expressly state in an EPA that the EPA will be revoked under specific circumstances (section 54 POA Act). For example, the EPA can state that it will be revoked if a specific purpose is achieved, or if the attorney is found to be in breach of certain duties.

An EPA is automatically revoked in the circumstances set out in the POA Act, for example:

• if the principal dies (section 19);
• if the principal gets married or enters into a registered relationship – unless the EPA states otherwise, the EPA is revoked to the extent that it gives power to someone other than the principal’s new spouse or registered partner (sections 52 and 52A);
• if the principal gets divorced or ends a registered relationship – the EPA is revoked to the extend that it gives powers to the principal’s divorced spouse or former civil partner (sections 53 and 53A);
• if the principal makes a new EPA – a previous EPA is revoked to the extent of any inconsistency (section 50);
• if an attorney dies – the EPA is revoked to the extent that it gives power to that attorney (section 58);
• if an attorney loses capacity for a matter – the EPA is revoked to the extent that it gives power to that attorney (section 56); or
• if an attorney becomes bankrupt or takes advantage of the laws of bankruptcy or similar legislation – the EPA is revoked to the extent that it gives power for financial matters to that attorney (section 57).

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Discrimination

Discrimination law governs the protection from and prevention of unlawful treatment on the basis of various attributes including race, sex, sexuality, age, disability, pregnancy, marital status, religion or political belief or activity.

Factsheets

• Discrimination claims in the Federal Circuit Court

External Resources

• Australian Human Rights Commission– The Australian Human Rights Commission is Australia’s independent human rights body which also helps people resolve complaints of discrimination and other breaches of human rights through their complaint handling service.
• Queensland Human Rights Commission (QHRC)– The Queensland Human Rights Commission receives and deals with complaints of discrimination and other contraventions of the Anti-Discrimination Act 1991 (Qld), and promotes human rights in Queensland.
• Discrimination and sexual harassment fact sheet– Legal Aid Queensland provides a detailed fact sheet on the law around discrimination and sexual harassment.

Where to go for help

• Queensland Advocacy for Inclusion (QAI)– Systems advocacy and legal advocacy organisation for people with disability in Queensland
• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at lawright.org.au. If your matter has not resolved in the Queensland Human Rights Commission (QHRC) and is proceeding to QCAT, LawRight may be able to help you through our Court and Tribunal Services.

This resource is current as of 21 February 2024

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Going to QCAT

The Queensland Civil and Administrative Tribunal (QCAT) is an independent tribunal that can resolve disputes, make and review decisions about anti-discrimination, administrative matters, building disputes, disputes over children and young people, guardianship, minor civil disputes, consumer and debt disputes as well as other civil matters if the amount in dispute is less than $25,000.

External resources

• Queensland Civil and Administration Tribunal – QCAT Homepage.

Where to go for help

• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at www.lawright.org.au. LawRight runs a Service to assist people representing themselves in QCAT.

This resource is current as of 21 February 2024

Going to QCAT factsheets

• Queensland Civil and Administrative Tribunal – Jurisdiction

• Unmeritorious proceedings and conduct causing disadvantage in QCAT

• Accessing your QCAT file

• Appealing a QCAT decision – Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal

• Costs in QCAT

• Enforcement of a monetary decision of QCAT

• Hearings in the Queensland Civil and Administrative Tribunal

• QCAT review of a decision made by Child Safety

• Representation in QCAT

• Witnesses in QCAT

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.