Most of us don’t like to think about a time where we might not be able to make our own decisions. But planning ahead isn’t about expecting the worst – it’s about making sure your wishes are respected, your loved ones aren’t left guessing, and your affairs are managed the way you want.
In Queensland, two key documents help with this: an Enduring Power of Attorney (EPOA) and an Advanced Health Directive (AHD). Both are incredibly important, but they serve different purposes. Understanding the difference can make a big impact on your peace of mind and the wellbeing of those who care for you.
What is an Enduring Power of Attorney?
An EPOA is a legal document that allows you to appoint someone you trust – called your attorney – to make decisions for you if you cannot make them yourself. This can happen in the case of a serious injury, illness, or a mental decline. Your attorney does not have to be a lawyer, and as the person who is making this enduring power of attorney, you are referred to as the ‘principal’.
Your attorney can make many decisions for you. This can include health matters, personal matters, and lifestyle decisions. This also involves decisions about support services, where and with whom you live, health care, and legal matters that do not have to relate to your financial or property matters. Your attorney can also look after your financial matters like paying expenses, making investments, selling property, or carrying on a business.
There is important information you must follow when choosing your EPOA. You can decide when your attorney(s)’ power to make decisions for financial matters begins. However, your attorney(s)’ power to make decisions for personal matters will always operate during times when you do not have capacity to make decisions about those matters. The Queensland EPOA form can only be completed by an adult who has capacity to make an EPOA. This means you must fully understand the nature and effect of this document and the powers it gives and you must be making this document freely and voluntarily, not due to pressure from someone else.
They key word here is enduring. This means it keeps working even after you lose the ability to make decisions yourself. Without and EPOA in place, your family might have to go through the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as your decision maker. A process that can be stressful, slow, and expensive.
What is an Advanced Health Directive?
However, there are some limitations to having an AHD. An AHD cannot foresee every possible future medical situation. Decisions not explicitly covered will be made by healthcare professionals and substitute decision makers based on their understanding of your values and best interests. You cannot include instructions in an AHD that are illegal. For example, a request for euthanasia is not legally binding because it is against the law in many places. AHDs are not designed to address basic needs such a hygiene or food, they are intended to guide treatment decisions in specific medical situations. A limitation that many people forget is that the document is only effective if it is specific enough to provide clear guidance, so make sure when writing you are clear about what you want.
There are also circumstances where AHDs may not be adhered to. If the events have drastically changed, or it requests futile or non – beneficial treatments, healthcare providers may not follow it if they believe the AHD conflicts with good medical practice.
When does each document take effect?
People often get confused about this, as both documents deal with decision making, but they both come into play at different time and in different ways. Your EPOA takes effect when you specify – for example, immediately for financial matters or when you lose capacity. Your AHD takes effect only if you cannot communicate or make your own health decisions. Think about it this way: your EPOA is broader and ongoing; your AHD is specific to medical care. Together, they should cover almost every situation where you may not be able to speak or act for yourself.
Choosing the right attorney
Choosing an attorney is one of the most important decisions you will make. This should be someone who understand you and someone you absolutely trust – a family member, close friend or professional who understands your values and will act in your best interests.
It is also wise to name a substitute attorney, in case your first choice cannot continue. Life changes – people move, fall ill, or pass away – so having a backup avoids future problems. Having more than one attorney can lead to conflict, decision-making deadlock, and legal issues if the attorneys are not able to agree or work together. Other problems include potential conflicts of interest, the risk of one attorney’s power being revoked, and the EPOA becoming invalid if it is not properly executed or if there are inconsistencies between documents. Unfortunately, some attorneys may mismanage their role. This could include using your money to pay their own expenses or selling your assets and keeping your money for themselves. Only appoint people you trust to look after your affairs.
To be eligible to be an attorney, a person must: have capacity to make decisions they are appointed for, be 18 or older, not be your paid carer or not have been your paid carer in the past 3 years. (A paid carer is someone paid a fee or wage to care for a person, but not someone receiving a carer’s pension or benefit), not be your health provider, not be a service provider for a residential service where you live, not be bankrupt or taking advantage of the laws of bankruptcy, if appointed for financial matters.
Where to keep and register your documents?
Once your EPOA and AHD are signed and witnessed correctly, keep the originals in a safe but accessible place – such as with your solicitor or in a secure home folder. Give copies to your doctor, hospital, and your chosen attorney.
In Queensland, currently an EPOA does not need to be registered unless it is used for property dealings, in which case it is registered in the Titles Queensland. An AHD does not get registered, but your GP or hospital should hold a copy so it can be accessed quickly in an emergency. If you wish for your document to be in My Health Record you can upload it via the website. Your document will be valid regardless of whether it is uploaded. You are also abled to have your EPOA uploaded to your Queensland Health electronic record. To do this, send a copy of your document to the Office of Advanced Care Planning.
Some people keep a note in their wallet or phone saying they have an EPOA and AHD– please contact my attorney, in case of an emergency.
In summary, setting up and EPOA and an AHD isn’t just about paperwork – it is about giving yourself and your family clarity, confidence, and comfort. This is your voice when you cannot speak. It is your choice, protected by law. And most importantly, it is an act of care – for yourself and for the people who love you most.
