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CHANGES TO QUEENSLAND’S GUARDIANSHIP LAWS

By June 11, 2021No Comments

Changes to Queensland’s guardianship laws took effect on 30 November 2020. As part of those changes, new Enduring Power of Attorney (EPA) and Advance Health Directive (AHD) forms have been introduced.

EPAs and AHDs created before 29 November 2020 using the old forms will remain valid.

However, from 30 November 2020 onward, the new forms will need to be used for these documents to be valid. It will not be necessary for anyone who already has valid forms in place to make new ones unless they wish to make changes to their existing arrangements in general.

What is an Enduring Power of Attorney?

An EPA allows you to appoint someone you trust (your attorney) to make decisions about personal (including health) matters and/or financial matters for you whilst you are alive.

What is an Advance Health Directive?

In the future, you may be unable to make decisions about your health care, even temporarily. An AHD provides further detail than an EPA and allows you to:-

  • provide specific directions to your appointed attorneys for health matters about your future health care; and
  • provide health professionals direction about the treatment you want.

This document is personal in nature and there is section you must complete with your general practitioner.

Under the new AHD, there is now a dedicated section in which you may give specific instructions about blood transfusions.

What’s new with the Enduring Power of Attorney forms?

Some notable additions to the new EPA forms include:-

1. Views, wishes and preferences

There is now a dedicated section in which you may record your views, wishes and preferences to be considered by your attorneys but are not considered instructions and are therefore not binding.

For example, these may include:-

  • wishes regarding lifestyle matters such as the area you wish to live in;
  • desire to continue living in your own home for as long as possible;
  • the friends and family you like to see; and
  • cultural and religious concerns.

2. Notice

There is also a dedicated section in which you may express who your attorney/s must notify when exercising their powers, what kind of notification must be made and when.

For example, you may want your attorney/s to notify yourself, your other current attorney/s, another family member or family doctor in writing, before they begin exercising their power for the first time.

3. Number of attorneys that can be appointed

The reform also limits the number of joint attorneys that can be appointed under an enduring power of attorney for a matter to 4. Joint attorneys must agree on all decisions under the enduring power of attorney. The change means a principal can only appoint a maximum of 4 people who make decisions in this way.

There is no limit on the number of attorneys appointed otherwise.

This limit does not apply for attorneys appointed for health matters under an advance health directive.

4.  Capacity requirements

Presently, you must be capable of understanding the nature and effect of an EPA before you can make one. There is now the added the stipulation that you must also be capable of making the EPA freely and voluntarily.

This additional requirement ensures that not only do you understand what an EPA is, but you are not being unduly influenced or pressured by someone else into making it.

5. Attorney eligibility

To be eligible, your attorney/s must:

  • have capacity to make the decisions they are appointed for;
  • be 18 years or older;
  • not be bankrupt, if appointed for financial matters;
  • not be your paid carer or have been your paid carer in the last 3 years before their appointment A paid carer includes someone who is paid a fee or wage to care for a person but not someone receiving a carer’s pension or benefit. A person who is living with you and receives a carer’s allowance from the government can be your attorney;
  • not be your health provider. A health provider, such as a nurse or medical practitioner who provides care for you, cannot be your attorney; and
  • not be a service provider for a residential service where you reside.

6. Conflict transactions

A conflict transaction occurs when there is a conflict between your attorney’s duty to you and their own interests. For example, your spouse or adult child is acting as your attorney and they wish to buy the family home after you move to a care facility, so as to ‘keep it in the family’.

Your attorney cannot enter a conflict transaction unless you (or a Court or QCAT have authorised the transaction.

You should seek legal advice before allowing an attorney to engage in conflict transactions under your EPA as it may have unintended consequences for you.

7. Recognising Interstate or New Zealand Enduring Powers of Attorney

In addition to recognising interstate EPA, a New Zealand EPA may also now be recognised under Queensland law to the extent that the powers they give could have been validly given by an EPA made in Queensland.

Where can I access these new forms? How do I prepare one?

The new EPA forms are available to be downloaded online. New explanatory guides for EPAs and AHDs have also been introduced.

While it may be tempting for some to “do it yourself”, there are many factors that must be considered when creating an EPA.

It is vital that the structure of an EPA and AHD is properly thought out, reflects your estate planning objectives and includes appropriately worded powers, terms and limitations.

If you need assistance in preparing an Enduring Power of Attorney, an Advance Health Directive, or would like to discuss any aspect of your estate plan including your Will, please do not hesitate to contact us.  Our details are located in the ‘Contact’ section of our website.