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4.9 Witnessing general powers of attorney, enduring powers of attorney and advance health directives documents

General powers of attorney

What is a general power of attorney?A general power of attorney (GPA) is a formal agreement whereby one person (the ‘principal’) grants another person (the ‘attorney’) the power to make decisions on their behalf. GPAs usually relate only to financial matters. The document on which the agreement is made is an official prescribed form, with space for the principal to specify the terms of the agreement. (Only this official form is acceptable.) Only the principal and a witness sign this form.

Sometimes the document specifies a time or a circumstance when the attorney can begin to make decisions on the principal’s behalf. Usually, however, the power begins as soon as the document is signed.

The power ends at any of these times:

• when specified in the document

• when the principal revokes it

• if and when the principal loses the capacity to manage their own affairs.

An attorney’s power ends when the attorney:

• resigns

• loses capacity

• becomes bankrupt

• dies.

Because a GPA comes to an end if the principal loses decision-making ability, it is often advisable to use an enduring power of attorney, which is not limited in this way.

A person may grant a GPA at any time and the witness need not be a JP (Qual). However, if this power of attorney is required to be registered under the Land Titles Act 1994, the witness must be a JP, a Cdec, a lawyer, or a notary public.

Why would someone make a GPA?Usually a person makes a GPA if they want someone to handle their financial affairs while they are absent e.g. if they are travelling overseas for an extended period.

How do you witness a GPA?Although any independent adult who meets the eligibility criteria set out in the Powers of Attorney Act 1998 can witness the document, most people believe that having it witnessed by a JP (Qual) or Cdec adds an air of authority or legal weight to the document.

If you are asked to witness one of these documents, follow your general procedure for witnessing documents.

4.9/2 Duties of Justices of the Peace (Qualified) handbook

Enduring powers of attorney

What is an enduring power of attorney?An enduring power of attorney (EPA) is similar to a GPA in that it is a legal agreement whereby one person (the ‘principal’) gives someone else (the ‘attorney’) the power to make decisions on their behalf. An official, prescribed form must always be used.

The main difference is that an EPA continues even if the principal loses decision-making capacity. In fact, an EPA often commences when the principal loses that capacity.

An EPA may relate to personal and health matters and/or to financial matters. The document nominates the areas that it covers.

Examples of personal and health matters are:

• where the principal lives and with whom

• day-to-day issues like diet and dress

• the type of health care the principal receives.

Examples of financial matters are:

• doing the banking

• paying bills

• decisions about investment

• choice on purchases.

The document also may set a timeframe or nominate particular circumstances when the attorney can exercise his or her powers, and gives clear guidelines for the attorney to follow.

Why would someone make an EPA?People may not always be able to make decisions when they have the need. For example, they may be overseas when decisions must be made and documents must be signed about the sale of some property. They may be too ill to make choices about the medical treatment they receive or where they are to live. An injury could leave them with a disability that prevents them from making decisions or from telling other people what their decisions are.

People who give someone an EPA can ensure their wishes will be carried out, even if they lose the capacity to make decisions themselves. Their attorney will have the power to make decisions in their interests and sign all necessary documents.

Clearly, decisions about personal and health matters remain with the principal unless they lose the capacity to make those decisions. So the attorney’s power does not begin until (if ever) the principal can no longer make his or her own decisions.

With financial matters, the form may specify if the power commences immediately or on a specified date or occasion. However, the power commences immediately the principal becomes incapable of making the necessary decisions. If no date or occasion has been specified, the attorney can immediately begin to make decisions on the principal’s behalf.

Although the prescribed EPA forms provide for the appointment of only three attorneys, it is permissible for the principal to appoint more if they wish. Should more than three attorneys be appointed, the document must clearly show who the attorneys are, what powers they have been given, in what order they have been appointed to act (i.e. severally, jointly, successively in the order of a, b, c, etc.).

Before witnessing an EPA, ask the principal if they have made an enduring document in another state. If an EPA or advance health directive has been made in another state and complies with the requirements in that state, then, subject to sections 34 and 40 of the Powers of Attorney Act 1998, the documents may be recognised in Queensland. This would negate the need to execute new documents.

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How do you witness an EPA?It is recommended you refer to the Public Guardian’s guidelines for witnessing enduring documents: www.publicguardian.qld.gov.au/adult-guardian/publications

1. First, check that everyone who needs to be involved is present.

They are:

a. the principal (the person signing the EPA and granting power to another person)

b. the witness (the person authorised by the Act to witness the making of an EPA, in this case yourself)

c. an interpreter, if the principal in unable to read or understand the English language. Ensure that a Form 7 (Interpreter’s/Translator’s Statement) is completed.

The attorney (the person who is being given the power to make decisions on the principal’s behalf) may be present as well, as she or he also has to sign an acceptance section of the document. However, the law allows this to be done at another time, if necessary. If the attorney is present, you should be aware of any potential signs of undue influence in making the document or appointing the particular attorney.

Note: Principals who are unable to sign the document themselves may appoint an ‘eligible signer’ to sign on their behalf. An eligible signer must be over 18 years of age and must not be either the witness for the document or an attorney for the principal, including an attorney appointed for the principal under another document. The eligible signer must sign the document in the presence of the principal and you as the witness at the same time. If an eligible signer signs the document on behalf of the principal, you must complete and sign a certificate stating these three things:

a. The principal, in your presence, instructed the person to sign the enduring document for the principal.

b. The person signed it in the presence of the principal and you.

c. The principal, at the time, appeared to you to have the capacity necessary to make the enduring document.

You must also:

• Ask the principal for some form of identification and note their name and document type in your logbook.

• Ensure the principal has full understanding of the nature and effect of the EPA.

Because EPAs may be complex and deal with such critical matters as the power to make decisions about someone’s personal life, extra safeguards have been built into the process.

To ensure there is no undue influence or pressure from anyone, including those accompanying the principal, the assessment of the principal’s capacity is best completed in private.

Anyone over 18 years of age may make an EPA at any time, provided they have the capacity to understand the contents and the effect of the document. If you have any doubts about the principal’s decision-making capacity, you should refuse to witness the document.

You can make a referral to the Public Guardian if you suspect the adult is being abused, neglected (including self-neglect), exploited or there are inappropriate decision-making arrangements.

2. Check that, as the witness, you meet the requirements of the Powers of Attorney Act 1998. Section 31 defines an ‘eligible witness’ and it includes a JP (Qual). However, as the witness, you must not be:

• the eligible signer (the person signing the document on the principal’s behalf )

• an attorney for the principal (someone appointed under this EPA or another power of attorney)

• related to the principal or to the principal’s attorney

• the principal’s paid health carer or health-care provider (if the EPA relates to personal matters).

4.9/4 Duties of Justices of the Peace (Qualified) handbook

3. Explain to the principal you will have to read through the document to check they have completed it correctly and nothing is missing.

4. Read through the document with the principal.

5. Follow the standard steps in witnessing documents. Because EPAs are so complex and deal with such critical matters as power to make decisions about someone’s personal life, extra safeguards have been built into the process.

6. The Powers of Attorney Act 1998 states an understanding of the following matters is necessary:

a. the principal may specify or limit the power given to an attorney

b. when the power begins

c. once the attorney’s power for a matter begins, they will have the power to make decisions about the matter and will have full control over it, as per instructions included in the document

d. the principal may revoke the EPA at any time so long as they have capacity to do so

e. the power the principal has given continues even if their capacity to make decisions becomes impaired

f. if at any time the principal loses capacity to revoke the EPA, they will also be unable to effectively oversee the use of the power.

To check this understanding, you will need to ask the principal questions. You should keep a detailed record of the questions asked and answers given in case the EPA is ever disputed. As this could occur many years later, it is essential you keep accurate records to refresh your memory.

Your questions should be framed in such a way that yes or no answers will not be sufficient in response. For example, instead of asking:

Do you know when the power begins?

You should ask:

When does the power begin?

(Though the principal must, by law, have the capacity to understand the nature and effect of the EPA, they do not have to prove their capacity. The onus of proof is on the person who disputes their capacity.)

7. Ensure the principal or the eligible signer signs and dates the document and that you witness their signature, including your seal of office and registration number. This should be done only after you have satisfied yourself that the principal has the capacity to make the EPA.

8. Read ‘important notice to the witness’, and complete, sign and date the ‘witness’s certificate’. This certificate states that the principal:

a. signed the enduring document in the witness’s presence

b. at the time, appeared to the witness to have the capacity necessary to make the enduring document.

9. While it is not the responsibility of the witness to have the attorney/s sign the ‘attorney’s acceptance’, should they not be present when the principal executes the document, it is important to inform the principal the attorney/s must read the ‘important notice to the attorney’ and complete the ‘attorney’s acceptance’ as soon as possible.

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10. Enter the details in your logbook. In addition to the notes mentioned above, the information that can be entered includes:

• date

• document witnessed

• principal’s details

• type of identification sighted

• location of signing

• any other relevant details.

Advance health directives

What is an advance health directive?An advance health directive (AHD) is a document where the principal sets out instructions about their future health care in case the time comes when they are unable to make such decisions or to speak for themselves. The instructions only come into effect when (and if) the principal loses either decision-making capacity or the capacity to make their wishes known.

They are not the same as EPAs appointing an attorney for personal and health matters because they give specific directions in relation to a range of medical conditions, including some that fall outside the authority of an attorney for health matters. For example, an attorney is not permitted to make decisions about ‘special health matters’, such as donation of body organs or tissues, or experimental health care.

However, the official prescribed AHD form does include a section where the principal can appoint an attorney for personal and health matters if they have not already done so (and they wish to). They can use this section to give the attorney specific instructions about health care.

Why would someone make an AHD?Every competent adult has the legal right to accept or refuse any recommended health care treatment. This is relatively easy when people are well and can speak. Unfortunately, during severe illness, people are often unconscious or otherwise unable to communicate their wishes—at the very time when many critical decisions need to be made. By completing an AHD, they can make their wishes known before this happens.

How do you witness an AHD?In general, you may witness an AHD in the same way as you would an EPA. However, the directions in the approved form can be adapted to suit the person’s circumstances.

1. First, check that you are eligible as a witness.

Additional restrictions apply to the witness for an AHD. You must be:

a. over 21 years of age

b. not a beneficiary under the principal’s will.

These are in addition to the eligibility criteria for witnesses for AHDs, which are that you must not be:

a. the eligible signer (the person signing the document on the principal’s behalf)

b. an attorney for the principal (someone appointed under this AHD or another power of attorney)

c. related to the principal or to the principal’s attorney

d. not the principal’s paid health carer or health-care provider (if the AHD relates to personal matters).

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2. Ask the principal for some form of identification and note their name and document type in your logbook. Check the principal has discussed the AHD with their medical practitioner.

It is strongly recommended the principal talk to a doctor about all issues involved so any implications can be clarified and uncertainties settled prior to signing.

3. Ensure a medical practitioner has signed and dated a certificate stating that, at the time of making the AHD, the principal appeared to have the necessary capacity to make the AHD.

The doctor may not be: the witness, the eligible signer, an attorney of the principal, a relation of either the principal or the principal’s attorney, or a beneficiary under the principal’s will.

The Act provides that an AHD must include such a certificate.

4. Check the principal understands the options available when making an AHD in relation to the appointment of an attorney for personal and health matters.

The principal may:

a. appoint an attorney specifically in the AHD

b. refer back to an attorney appointed under an EPA for personal/health matters previously executed.

The principal may not appoint one attorney for personal and health matters under an EPA and another attorney for personal and health matters under an AHD.

There is no requirement that the principal appoint an attorney under the AHD or to refer back to an attorney appointed under an EPA. However, they may make an AHD only if they understand:

a. the nature and likely effects of each direction in the AHD

b. a direction in the AHD will be followed only while they have impaired capacity to deal with the matter that it covers

c. they may revoke a direction at any time while they have the capacity to make decisions about the matter covered by the direction

d. at any time when they are not capable of revoking a direction, they are also unable to effectively oversee the implementation of the direction.

If the AHD also gives power to an attorney, the requirements of the Powers of Attorney Act 1998 regarding EPAs also apply.

5. Read the notice to witness carefully before signing and dating it.

6. Enter the details in your logbook. In addition to the notes mentioned above, the information that can be entered includes:

• date

• document witnessed

• principal’s details

• type of identification sighted

• location of signing

• any other relevant details.

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Summary of procedures• Determine if the document is a GPA, an EPA or an AHD.

• The documents must all be on the approved, prescribed forms. You should make a note in your logbook that the approved form has been used.

• Make sure you meet all the criteria of an eligible witness, including the extra requirements if witnessing an AHD.

• Ask the principal for some form of identification sufficient to satisfy yourself of their identity.

• Explain to the principal the document will need to be read through to ensure that it is correctly completed and that no questions or sections have been left out.

• Read through the document, preferably with the principal.

• If the document is an AHD, ensure a doctor has already signed the relevant section.

• Satisfy yourself the principal has the necessary capacity under the requirements of the Powers of Attorney Act 1998. Check by questioning the principal and record both the questions and answers.

• Determine if the principal is physically capable of signing the document or if an eligible signer is to be used. Ensure the eligible signer meets the criteria specified.

• Ensure the document is dated correctly as of the date of signing.

• Have the principal (or the eligible signer) sign and date the document. As the witness, you should sign and date on the same page.

• Complete the witness’s certificate, and sign and date the document.

Things to bear in mind• An enduring document must be in the approved form. It must comply with chapter 3, part 4 of the Powers of

Attorney Act 1998 (POA), contain all the required information and be executed in accordance with the POA. Section 49 of the Acts Interpretation Act 1954 provides guidance for compliance with approved forms.

• Record all questions asked and responses given where example questions are documented with room for responses.

• Complete the appropriate details in your logbook or similar.

• The Act places a very serious responsibility on the witness, one that far exceeds your normal duty in witnessing a document.

• The Powers of Attorney Act 1998 mentions under ‘general principles’ the fact that a person is ‘presumed to have capacity’—that is, principals are not obliged to prove, to the witness or anyone else, that they have the capacity to understand the nature and effect of the document they are signing. If there is a reasonable likelihood of doubt about the principal’s capacity, you should make a written record of the evidence you relied on in concluding that the principal understood the nature and effect of the document, whether it is for a GPA, an EPA or an AHD.

• If, as the witness, you are not satisfied the principal has the capacity to appoint an attorney or make an AHD, you should decline to witness the document and decline to sign the witness’s certificate.

• If an adult’s capacity to make an EPA is called into question, after the document has been made, you may be required to provide evidence to the either the Supreme Court or Queensland Civil and Administrative Tribunal (QCAT) of the steps you took to assess the adult’s capacity to understand the document.

• Both QCAT and the Supreme Court have the power to appoint a new attorney or guardian by revoking an EPA or by declaring the document invalid.

• Due to the nature of the document, you must satisfy yourself the person asking you to witness the document is, in fact, the principal. Therefore, it is reasonable and strongly recommended that you require proof of identification prior to witnessing the document.

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• AHDs have provision at the end of the document for the principal to periodically review the information. No witness is required for the principal’s signature on these reviews.

• You may be called upon to certify a copy of a power of attorney document or an AHD. Refer to the chapter on certifying copies in this handbook.

Frequently asked questions

Can more than one attorney be appointed?Yes. The principal may appoint separate attorneys for personal and financial matters, or two or more attorneys for each type of matter.

However, they may not appoint one attorney for personal and health matters in an EPA and another attorney for personal and health matters in an AHD.

Which form should be used for an EPA?Only approved forms are acceptable and all pages of the document must be present at the time of witnessing.

There are two types of EPA forms—a short form and a long form:

• The short form is used when the principal wishes to appoint the same attorney or attorneys for both financial and personal matters (including health care). This form can also be used to appoint an attorney or attorneys for financial matters only or for personal matters only (including only health care).

• The long form is used when the principal wishes to appoint more than one attorney for financial and/or personal matters or delete separate attorneys for personal and financial matters, or even for specific matters.

Can I refuse to witness a GPA, an EPA or an AHD?Yes. As discussed earlier, if you believe the principal does not have the capacity to appoint an attorney or make an AHD, you must refuse to witness the document. If you believe the principal is under some form of duress to sign the document, you should also refuse to witness it.

If you suspect the adult is being abused, neglected, exploited or there are inappropriate decision-making arrangements in place, you can make a referral to the Office of the Public Guardian.

Where can the forms be obtained?The forms are available free of charge on the Queensland Government publications portal: www.publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive

Where can I get more information?Office of the Public Guardianwww.publicguardian.qld.gov.au

Queensland legislationwww.legislation.qld.gov.au

Formswww.publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive

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Sample form

Enduring power of attorney—long form statement of understanding (page 15 of 24)

Insert your seal of office or your prescribed mark of office and insert your registration number beside or below your signature

Insert date

Insert date of signing by the principal or eligible signer

SAMPLE

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Sample form

Enduring power of attorney—long form statement of understanding (page 16 of 24)

Insert your seal of office or your prescribed mark of office and insert your registration number beside or below your signature

Insert date

SAMPLE

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Sample form

Advance health directive (page 19 of 24)

Insert date

Insert date of signing by the principal or eligible signer

SAMPLE Insert your seal of office or your

prescribed mark of office and insert your registration number beside or below your signature

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Sample form

Advance health directive (page 20 of 24)

Insert your seal of office or your prescribed mark of office and insert your registration number beside or below your signature

SAMPLE

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Quick guide

Follow these steps to witness a general power of attorney—they are similar to witnessing a general document

1 Check the document is on the approved, prescribed form.

2 Note this in your logbook.

3 Make sure you meet the criteria of an eligible witness.

4 Check the signatory is the person named in the document.

5 Ask for proof of identity.

6Confirm for yourself the person has intellectual and physical capacity to sign.

a. If they are not physically capable of signing, do they have an eligible signer?

7 Confirm the date throughout the document is the same as the date on which you’re witnessing.

8 Explain you need to read through the form.

9

Read through the document for alterations, spaces or omissions.

a. Both you and the signatory should initial any changes, including correction fluid or tape.

b. Cross out or ask the signatory to complete any unanswered fields, then both of you should initial them.

10 Ask the signatory to sign the document in front of you.

11 Complete the witness’s certificate, and sign and date the document.

12 Insert your registration number wherever a signature is required.

13Place your seal of office close to wherever you have signed (either beneath or beside, but never over the signature).

14 Enter all relevant details in your logbook.

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Quick guide

Follow these steps for witnessing an enduring power of attorney

1

Ask the principal if they have made an enduring power of attorney (EPA) or an advance health directive (AHD) in another state.

a. If yes, they may not need to complete a new document.

2

Check everyone who needs to be involved is present:

a. Principal

b. You, as the witness

c. The attorney may also be present but does not need to be.

3

Confirm for yourself the person is over 18 and has intellectual and physical capacity to sign.

a. If they are not physically capable of signing, do they have an eligible signer?

b. If they do not understand or read English, is there an interpreter present? (A Form 7 is needed.)

4 Check the document is on the approved, prescribed form.

5 Note this in your logbook.

6 Make sure you meet the criteria of an eligible witness.

7 Check the principal is the person named in the document.

8 Confirm the date throughout the document is the same as the date on which you’re witnessing.

9 Explain you need to read through the form.

10

Read through the form with the principal for alterations, spaces or omissions.

a. Both you and the signatory should initial any changes.

b. Cross out or ask the signatory to complete any unanswered fields, then both of you should initial them.

11Question the principal on their understanding of the document, including the power being given to the attorney and when the power begins.

12 Ask the principal or eligible signer to sign the document in front of you.

13 Complete the witness’s certificate, and sign and date the document.

14 Insert your registration number wherever a signature is required.

15Place your seal of office close to wherever you have signed (either beneath or beside, but never over the signature).

16If the attorney is not present, remind the principal that the attorney should read the notice and complete the acceptance as soon as possible.

17 Enter all relevant details in your logbook.

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Quick guide

Following these steps for witnessing an advance health directive

1

Ask the principal if they have made an enduring power of attorney (EPA) or an advance health directive (AHD) in another state.

a. If yes, they may not need to complete a new document.

2If an EPA exists for personal and health matters, check it uses the same attorney.

a. An EPA and an AHD cannot have different attorneys for personal and health matters.

3Check a medical practitioner has signed and dated a certificate that the person has capacity to make the AHD. This is essential.

4

Check everyone who needs to be involved is present:

a. principal

b. you, as the witness

c. the attorney may also be present but does not need to be.

5

Confirm for yourself the principal is over 18 and has intellectual and physical capacity to sign.

a. If they are not physically capable of signing, do they have an eligible signer?

b. If they do not understand or read English, is there an interpreter present? (A Form 7 is needed.)

6 Check the document is on the approved, prescribed form.

7 Note this in your logbook.

8

Make sure you meet the criteria of an eligible witness. Special criteria includes:

a. You must be over 21.

b. You must not be a beneficiary under the principal’s will.

c. You must be the eligible signer.

d. You must not be an attorney for the principal.

e. You must not be related to the principal or the principal’s attorney.

f. You must not be the principal’s paid health carer or healthcare provider.

9 Check the principal is the person named in the document.

10 Confirm the date throughout the document is the same as the date on which you’re witnessing.

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11 Explain you now need to read through the form.

12

Read through the form with the principal for alterations, spaces or omissions.

a. Both you and the signatory should initial any changes, including correction fluid or tape.

b. Cross out or ask the signatory to complete any unanswered fields, then both of you should initial them.

13 Question the principal on their understanding of the document.

14 Ask the principal or eligible signer to sign the document in front of you.

15 Complete the witness’s certificate and sign and date the document.

16 Insert your registration number wherever a signature is required.

17Place your seal of office close to wherever you have signed (either beneath or beside, but never over the signature).

18If the attorney is not present, remind the principal that the attorney should read the notice and complete the acceptance as soon as possible.

19 Enter all relevant details in your logbook.