Enduring Power of Attorney: Critical Changes

As we settle into a new year and leave 2020 behind, it is an ideal time to reflect and take the opportunity to plan for situations that impact our business, health and finances so as to secure the future of ourselves and our loved ones. Part of that planning for the future involves consideration of appropriate estate planning strategies.

Relevantly, a number of significant changes to Queensland’s guardianship laws commenced on 30 November 2020.

The Guardianship and Administration Act 2000, Powers of Attorney Act 1998, and Public Guardian Act 2014 form the legislative basis of Queensland’s guardianship system. That system provides a scheme for individuals to be appointed to make personal, health, and financial decisions on behalf of adults who no longer possess the capacity to make certain decisions themselves. The system also allows for adults to plan ahead, and appoint individuals to make those decisions, as well as giving directions about future health care.

As a consequence of the reforms there are new detailed principles to be applied when determining whether an adult has capacity, additional powers given to QCAT and, importantly, new:

• Enduring power of attorney forms
• Advance health directive forms
• Other related forms and explanatory guides
• Capacity assessment guidelines

Some of the key changes for attorneys include:

1. a proposed appointed attorney must not have been a paid carer for the principal in the previous three years before their appointment;
2. an attorney/administrator cannot enter into a conflict transaction unless duly authorised to do so, by a court or tribunal;
3. the number of joint attorneys appointed under an Enduring Power of Attorney is now limited to 4.

The above is by no means exhaustive, and ultimately a number of significant changes have been made to reflect the primary policy objectives behind these changes which were to:

1. provide a focus on contemporary practice and human rights for adults with impaired capacity; and
2. enhance safeguards for adults with impaired capacity in the guardianship system; and
3. improve the efficiency of Queensland’s guardianship system or improve the clarity of Queensland’s guardianship legislation.

Takeaways on EPOAs

If you are currently acting as someone’s attorney pursuant to an EPOA, or are considering taking on such an appointment the following should be noted:

1. the new forms are to be used as of 30 November 2020; however,
2. an Enduring Power of Attorney validly made on the existing forms prior to 30 November 2020 and valid at 30 November 2020, remains valid.

Takeaways for Advance Health Directives

If you hold an Advance Health Directive on someone’s behalf:

1. where validly made on the existing forms prior to 30 November 2020, and valid at 30 November 2020 it will continue to be valid after 30 November 2020 provided that it complies with the amended s 29(2) Powers of Attorney Act 1998;
2. where the appointment of an attorney under an Advance Health Directive does not comply with s 29(2), it will be automatically revoked on 30 November 2020 to the extent that it gives power to that particular attorney.

Section 29(2) relevantly provides the definition of an “eligible attorney” and includes the requirement that an attorney not be a paid carer or health provider of the principal.

You can access the new power of attorney and health directive forms here and we recommend that you contact one of our team members to discuss with any queries or concerns you may have regarding these amendments to Queensland’s guardianship laws or if you need to know more about appointing, or acting as, another person’s attorney.