Estate Planning: Will, Enduring Power of Attorney and Advance Health Directive

Does an advance health directive need a doctor to sign it?: Yes. It must include a certificate by a doctor or nurse practitioner that the principal appeared to have the capacity to make it, and that person cannot be the witness, an attorney, a relation or a beneficiary under the principal's will (Powers of Attorney Act 1998 (Qld) s 44(6) and (7)). The directive must be in writing and may use the approved Form 4.

Does an enduring power of attorney have to be registered in Queensland?: Not to be valid. Titles Queensland requires it to be registered, by lodging a Form 16 with the original or a certified copy, before the attorney can act in a transaction of Queensland land, and a registered power continues to authorise land dealings until a revocation is registered (Powers of Attorney Act 1998 (Qld) s 60).

Jurisdiction: Queensland, Australia. Wills are governed by the Succession Act 1981 (Qld) and enduring powers of attorney and advance health directives by the Powers of Attorney Act 1998 (Qld); powers of attorney used for land dealings are registered with Titles Queensland. Superannuation death benefits pass outside the will under the Superannuation Industry (Supervision) Act 1993 (Cth) and the fund's trust deed. No court is involved unless a document is later challenged.

The Process at a Glance: Take full instructions on the client's assets, family structure, existing documents and wishes. Assess testamentary capacity and document it in the file. Identify complex issues including blended families, business interests, discretionary trusts, estranged family members and superannuation, and prepare binding death benefit nominations where required. Consider whether a testamentary trust is appropriate. Draft the will, the enduring power of attorney and the advance health directive on the approved forms. Review all documents with the client, including whether an earlier enduring power of attorney should be revoked. Execute the documents with strict witnessing compliance, register the enduring power of attorney with Titles Queensland where land may be dealt with, store the originals in safe custody and send a reporting letter with a review program.

Key Legislation and Case Law: Succession Act 1981 (Qld) - s 10 (execution of wills), s 11 (interested witnesses), s 13 (revocation), s 21 (court may authorise a will for a person without testamentary capacity), s 40 (child and dependant defined for family provision), s 41 (family provision; proceedings within 9 months after death unless the court directs otherwise), s 44 (protection of personal representatives who distribute after the statutory periods). Powers of Attorney Act 1998 (Qld) - s 29 (eligible attorneys), s 31 (eligible witness), s 33 (when power is exercisable), s 35 (advance health directives), s 44 (formal requirements and approved forms), ss 46-50 (revocation), s 60 (registration). Trusts Act 2025 (Qld), which replaced the Trusts Act 1973. Superannuation Industry (Supervision) Act 1993 (Cth). Case law: Banks v Goodfellow (1870) LR 5 QB 549 (testamentary capacity test); Briginshaw v Briginshaw (1938) 60 CLR 336 (standard of proof).

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