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Power of attorney and guardianship issues

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					           Flood & cyclone legal help
            Produced by the Queensland Legal Assistance Forum




                                                      Power of attorney and
                                                      guardianship issues
                                                      What is an Enduring power of                 I have been appointed an attorney
                                                      attorney?                                    in an Enduring power of attorney
                                                      An Enduring power of attorney is an          for a person (“the principal”) who
                                                      important legal document that allows         has lost capacity. Their original
                                                      you (the principal) to appoint another       Enduring power of attorney has
                                                      person (an attorney) to make personal or     been lost in the floods or cyclones.
                                                      financial decisions on your behalf.          What do I do?
                                                                                                   Where possible, you should search
                                                      If the power of attorney is “enduring”,
                                                                                                   your home and business as well as the
                                                      this means it continues to operate after
                                                                                                   principal’s home and business to see if
                                                      you lose capacity.
                                                                                                   you can recover a certified copy of the
                                                                                                   Enduring power of attorney. This includes
                                                      I lost my original Enduring power of         any safes and safe deposit boxes you
                                                      attorney in the floods. Do I need to         may have access to.
                                                      make a new one?
                                                      Yes. To avoid confusion and further cost     Alternatively, you should inquire with the
                                                      later on, it is strongly recommended         principal’s solicitor, accountant, bank,
                                                      that you make a new Enduring power of        financial planner or stockbroker to see if
                                                      attorney.                                    they hold a certified copy of the Enduring
                                                                                                   power of attorney in safe custody.


QLAF
                                                      You can make an Enduring power of
                                                      attorney by contacting a solicitor           If you cannot recover a certified copy
                                                      (visit www.qls.com.au or call                of the Enduring power of attorney, and
                     Queensland Legal Assistance   Forum
                                                      07 3842 5888) or the Public Trustee (visit   the person has lost capacity, you will
                                                      www.pt.qld.gov.au or call                    need to apply to the Queensland Civil
                                                      1300 360 044). You can download an           and Administrative Tribunal (QCAT) to


Q LAF
                                                      Enduring power of attorney from the          be appointed as their attorney. You can
                                                      Department of Justice and Attorney-          contact QCAT on 1300 753 228 or visit
                                                      General website (www.justice.qld.gov.        www.qcat.qld.gov.au
                     Queensland Legal
                     Assistance Forum                 au). You should get legal advice before
                                                                                                   Depending on the complexity of the
                                                      making an Enduring power of attorney.
                                                                                                   matter, you may need legal advice.
                                                                                                   You can find a solicitor by calling the
                                                      I have searched and found a copy             Queensland Law Society on (07) 3842
                                                      of my Enduring power of attorney. I          5888 or visit www.qls.com.au. For more
                                                      cannot find the original. Do I need a        information, contact the Public Trustee
                                                      certified copy?                              on 1300 360 044 or visit
                                                      Yes, you will need a certified copy. For     www.pt.qld.gov.au
                                                      more information, see sections 14 and 45
                                                      of the Powers of Attorney Act 1998 (Qld).


         Q
Aboriginal & Torres Strait Islander
     Legal Service (Qld) Ltd




                                                                                                                                                1
    What is a General power of attorney?                                      Public Trustee on 1300 260 044 or visit
                                                                              www.pt.qld.gov.au
    A General power of attorney is a written document that
    allows you (the principal) to appoint another person
    (the attorney) to make financial decisions on your behalf                 I lost security documents (eg mortgage
    while you have the capacity to make those decisions (eg                   document, title deeds, shareholder listings,
    if you are away on holidays and you need someone to                       bank letters, passports, birth and marriage
    manage your properties — including buying and selling                     certificates) in the floods or cyclones. Who
    — or pay your bills and expenses).                                        might have a copy of these documents?
                                                                              It is best to do a thorough search of your home and
    As soon as you lose capacity, the General power of
                                                                              business premises, including any safes and safe
    attorney ends.
                                                                              deposit boxes.
    Any General power of attorney relating to land must be
                                                                              Your solicitor or accountant may hold security
    registered in the Land Titles Office.
                                                                              documents in safe custody. Similarly, your bank,
                                                                              financial planner or stockbroker may hold security
    I lost my original General power of attorney in                           documents. Copies of property documents (eg
    the floods or cyclones. Do I need to make a new                           mortgages, title deeds, title searches, leases etc) may
    one?                                                                      also be obtained from the Land Titles Office with a fee.
    If you have a certified copy of your General power of
    attorney, you do not need to make a new one. The Land                     People who have lost documents in Queensland’s
    Titles Office will accept a certified copy of a General                   floods can now apply for free replacement birth, death,
    powers of attorney. For more information, contact the                     marriage or change-of-name certificates.
    Land Titles Office on 13 74 68 or visit
                                                                              Simply apply at a courthouse or a Queensland
    www.derm.qld.gov.au
                                                                              Government Agent Program office, or contact the
    If you do not have a certified copy of your General power                 Registry of Births, Deaths and Marriages on
    of attorney, you will need to make a new one.                             1300 366 430 or email BDM-mail@justice.qld.gov.au

                                                                              Birth certificates are important documents, particularly
    I have been appointed as an attorney in a                                 for identification purposes with banks and for parents
    General power of attorney for a person who has                            whose children are starting school shortly. For more
    lost capacity. Their original Power of attorney                           information, visit www.justice.qld.gov.au
    has been lost in the floods or cyclones. What do
    I do?                                                                     People who have lost or had their Australian passport
                                                                              damaged in the floods may apply for a replacement
    A General power of attorney ends when a person loses
                                                                              passport. For more information, contact the Australian
    capacity, therefore you cannot use that General power
                                                                              Passport Information Service on 131 232 for eligible
    of attorney. You will need to apply to the Queensland
                                                                              towns/regions or visit www.passports.gov.au
    Civil and Administrative Tribunal (QCAT) to be appointed
    as their attorney. Contact QCAT on 1300 753 228 or visit
    www.qcat.qld.gov.au

    Depending on the complexity of the matter, you may
    need legal advice. You can find a solicitor by calling the
    Queensland Law Society on (07) 3842 5888 or visit
    www.qls.com.au. For more information, contact the




    Disclaimer: This factsheet was originally produced in response to the Queensland floods in December 2010 and January 2011. It is intended
    to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal
2   advice, are not intended to be a substitute for legal advice and should not be relied on as such.

				
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posted:9/29/2011
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