Important new changes to Queensland’s guardianship laws took place on 30 November, 2020. Among various other reforms to the laws, the Queensland Government have issued new Enduring Power of Attorney and Advance Health Directive forms.

 
The new forms will replace the existing forms which have been in place for over 16 years and include a number of significant updates. The old version will still be recognised if signed prior to 30 November, 2020, however, any Enduring Powers of Attorney or Advance Health Directives after this deadline must be made using the new forms in order to be valid.

How are the forms different?

 
There are a number of changes to the new Enduring Power of Attorney form.
 
The Enduring Powers of Attorney now include a section where the person making the document can express their views, wishes and preferences, in addition to legally binding instructions.

The new section of the form allows people to record their wishes including decisions relating to:

  • lifestyle matters such as the area they wish to live in;
  • living in their own home for as long as possible, even if it involves receiving assistance with housework and personal care; and
  • cultural and religious concerns.
 
There is also a section in the new form which allows a person to require their attorneys to notify nominated persons (e.g. children, other family members, financial advisers) on certain occasions, including when the attorney intends to exercise power for a personal matter (including health matters) or to make financial decisions.
 
A direction can be made that financial attorneys must provide to these nominated persons:
  • written notice of their intention to exercise power for financial matters, before they do so;
  • financial records and accounts;
  • summaries of income, expenditure and assets;
  • copies of financial management plans and financial advice obtained.

Limit to number of Joint Attorneys

 
The reforms limit the number of joint attorneys that can be appointed under an Enduring Power of Attorney - a person can no longer appoint more than four attorneys to act jointly.

There is however, no limit on the number of attorneys appointed otherwise i.e. where the attorneys are appointed to act severally, by way of majority or successively.

This limit does also not apply for attorneys appointed for health matters under an Advance Health Directive.

Other Reforms

 
The other changes to Queensland’s guardianship laws include:
  • New capacity assessment guidelines
  • Changes to the general principles and health care principles
  • Clarity on applying the presumption of capacity
  • Clarity about capacity to make an enduring document
  • Conflict transactions – authority provided by principal at the time
  • Eligibility requirements for attorneys
  • Appointing administrators for missing adults
  • Recognising interstate or NZ enduring powers of attorney
 
If you require assistance with preparing a new Enduring Power of Attorney or Advance Health Directive, or require assistance or advice on these reforms, please contact our knowledgeable and experienced estate planning team on 4963 0888.