While no one wants to imagine a time when they can’t make their own decisions, it’s a reality that many people face whether it be due to illness, injury, or age-related conditions like dementia. Positively, there are tools that allow you to prepare for such a situation—namely, the Enduring Power of Attorney (EPOA) and Guardianship appointments.
Understanding the difference between these two legal appointments—and when each one applies—is essential for protecting your rights and ensuring that your wishes are respected when you or a loved one can no longer act within your best interests.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that allows you to appoint someone you trust (called your attorney) to make decisions on your behalf. It is ‘enduring’ because it continues to operate even after you lose mental capacity.
This document is one of the most important tools in future planning, as it allows you to take control over who manages your affairs if you cannot.
What Kind of Decisions Can Be Made?
In Queensland, your appointed attorney can make decisions about:
- Personal matters, such as:
- Where you live
- What healthcare or medical treatment you receive
- Day-to-day lifestyle decisions
- Financial matters, including:
- Managing your bank accounts
- Paying your bills and taxes
- Selling or managing property
- Handling investments.
You can appoint one person for both types of decisions, or different people for personal and financial matters. You also have the option to set specific instructions or conditions in the EPOA document.
When Does It Take Effect?
- For financial matters, the EPOA can start immediately or only when you lose capacity.
- For personal and health matters, the attorney’s authority only begins once you are deemed to have lost capacity.
This is a crucial distinction—your financial attorney can begin helping while you’re still capable (if you choose), which might be useful for convenience or during times when you’re temporarily unavailable or unwell.
Who Can Be Appointed as an Attorney?
Choosing the right person is vital. You should appoint someone who is trustworthy, competent, and who understands your wishes. Your attorney must:
- Be at least 18 years old
- Not be your paid carer, health provider, or service provider
- Be willing and able to act in your best interests.
You can also appoint multiple attorneys and specify whether they must act together or separately.
What is Guardianship?
While an EPOA is something you create in advance, Guardianship is a legal process that occurs after a person has lost capacity, and no valid EPOA is in place.
Guardianship is managed through the Queensland Civil and Administrative Tribunal (QCAT), which has the authority to appoint someone—known as a guardian—to make personal and health decisions for you.
This process ensures that vulnerable adults who can no longer make their own decisions are protected and cared for.
What Does a Guardian Do?
A guardian can make decisions about:
- Medical treatment
- Living arrangements
- Access to services
- Contact with others
- Lifestyle and daily activities.
However, a guardian cannot make financial decisions—those must be made by an administrator, who may be appointed by QCAT separately.
Who Can Be Appointed?
QCAT can appoint:
- A family member or friend
- A professional guardian (such as the Public Guardian, which is a government body that acts in the interest of people without anyone suitable).
The tribunal prioritises decisions that reflect the adult’s previously known wishes and supports autonomy as far as possible.
Guardianship vs. Enduring Power of Attorney: Key Differences
Here’s a comparison to highlight how these two systems differ:
| Enduring Power of Attorney (EPOA) | Guardianship | |
| When created | While you have capacity | After capacity is lost |
| Who chooses the decision-maker | You | QCAT (Upon application) |
| Covers financial decisions | Yes | No (separate administrator needed) |
| Covers personal/health decisions | Yes | Yes |
| Flexibility and personal choice | High | Limited |
| Can be revoked | Yes, if you still have capacity | Only by QCAT |
Why is Planning Ahead So Important?
Appointing an EPOA before you lose capacity gives you greater control, reduces the burden on loved ones, and helps avoid legal complications. Without it, your family may have to apply to QCAT for guardianship or administration—delaying important decisions and adding stress during already difficult times.
Creating an EPOA:
- Ensures your values and preferences are followed
- Helps avoid family disagreements
- Reduces legal and administrative delays
- Protects you from potential exploitation or neglect.
What Happens if You Don’t Appoint an EPOA?
If you lose capacity and haven’t appointed an EPOA, your family or friends may need to apply to QCAT for a guardian and/or administrator to be appointed. This can take a great deal of time and may result in someone being chosen who wouldn’t have been your preference.
Conclusion
Appointing an Enduring Power of Attorney is one of the most empowering and protective legal actions you can take for yourself. It ensures that, even if the unexpected happens, your personal, health, and financial affairs are in the hands of someone you trust.
If you’re uncertain about how to start, consider contacting Miller Sockhill Lawyers on 07 5444 4750 for advice on drafting an effective enduring power of attorney or for assistance with the guardianship application process.
Taking these steps today can make a significant difference for you and your loved ones in the future.