It Depends – What happens if you don’t have a power of attorney?

In this edition of It depends, partner Hayley Mitchell talks about what happens if someone has lost capacity and they don’t have an enduring power of attorney.

Video transcript

Hi, and welcome to another edition of It depends. Today, I’m going to talk about what happens if someone doesn’t have an enduring power of attorney and they’ve lost capacity.

A family member has lost capacity and doesn’t have a power of attorney, what’s next?

It’s likely you will need to make an application to the tribunal in your state. Relevantly, in Queensland, it’s the Queensland Civil and Administrative Tribunal. Otherwise referred to as QCAT.

What do I need to apply for?

The type of application that you need to make to the tribunal is going to depend on the circumstances. If it is a question of a financial decision needing to be made for a person who has lost capacity, then the relevant application is for the appointment of an administrator. Whereas if it is a personal health decision that needs to be made, it is an application for the appointment of a guardian, or you might be making a combined application for the appointment of both of these positions. If the matter is urgent, you can also seek urgent interim orders from the tribunal. Making an urgent application means that the tribunal will look at the application much more quickly. But the effect of an interim order is it will only last for a three month period.

Does the tribunal require medical evidence?

Yes, the tribunal will require a health professional report to be provided for any of these applications, even if it is an urgent application. The report can be completed by either a treating GP or a specialist doctor.

What else will the tribunal consider?

What the tribunal needs to consider is really going to vary depending on the circumstances of the case, but at a minimum, the tribunal needs to satisfy themselves that the person has impaired capacity. There also needs to be a decision that has to be made for the adult, or a risk to their personal welfare or their property or assets.

How do I apply?

The tribunal is designed and set up to be used by the public without necessarily engaging a lawyer. However, this is a fairly complex area of the law, so seeking legal advice prior to making an application is always recommended. Contact a member of our team if you’ve got any questions about this area.