Estate Planning

      Changes to the Enduring Power of Attorney and Advanced Health Directives Form from 30 November 2020

      By Jessica Douglas + Erlinda Nunn

      An Enduring Power of Attorney allows you to nominate someone you trust to make decisions for you if you lose the capacity to make decisions for yourself, these decisions include matters pertaining to personal, health and financial matters.

      An advance health directive allows you to give direction about your future healthcare when you are unable to make your own healthcare decisions.

      From 30 November, 2020 a new standard Enduring Power of Attorney Form and Advanced health Directive Forms will be rolled out by the Queensland Government. There are legal requirements that are applicable to both of these documents and you need to be aware of these changes.

      These documents are even more important than a properly made Will.   You are still alive when they might be taken from the safe and dusted off.  So getting it right is very important.

      New capacity assessment guidelines

      There are also new Queensland Capacity Assessment Guidelines in effect from 30 November 2020. The capacity guidelines provide general information about capacity, capacity assessment and the legal tests of Capacity in Queensland.

      An adult with capacity has the right to make legally recognised decisions about their life, such as health care choices, support services, where they live, how they manage their finances and who they wish to appoint as attorneys.

      The presumption is that all adults have capacity to make decisions on their own until proven otherwise. When making an assessment of capacity, one needs to:-

      1. Identify the decision to be made.
      2. Identify a need to assess capacity.
      3. Apply the right legal test of capacity.
      4. Prepare for the assessment.
      5. Conduct the assessment.
      6. Document your conclusion and reasons.

      Changes to the Enduring Power of Attorney:-

      Within the Enduring Power of Attorney form you have the option to record your views, wishes and preferences within the document. This is to allow you, as the Principal, more opportunity to have a record of how you would like your attorneys to act on their behalf in respect to your wishes, such as recording the ability to be near friends and family if you were to lose capacity. The document also allows you to nominate a specific person to be notified by your attorney when they are going to make a decision in respect to a health, personal or financial matter. This allows you the option to have accountability between your attorneys when making decisions on your behalf. The new enduring power of attorney form limits the number of joint attorneys a principal can appoint to 4. This limit does not apply to attorneys appointed for health matters under an advance health directive.

      Changes to the Advance Health Directive:-

       Similarly, the Advanced Health Directive allows you to record your wishes and preferences when you are unable to make your own healthcare decisions. The document allows you to record health matters that are of concern to you and to consider matters that are important for your quality of life such as, the idea of living in your own home. It is important to note that this document does not provide your attorney or medical professionals with instructions on your health care but allows you the opportunity to let your attorney and other people know about your views, wishes and preferences about your health care.

      Eligibility requirements for appointed attorneys

      In addition to the existing eligibility requirements, those who are appointed to act on behalf of a principal under an enduring power of attorney or advance health directive must:-

      • have capacity for a matter and/or health matters; and
      • not have been a paid carer for the principal in the previous 3 years before their appointment;
      • not be a service provider for a residential service where the principal resides.

      Greater accountability

      If an attorney does not act in accordance with their duties or obligations under the guardianship legislation, QCAT can now order a current or former attorney, administrator or guardian to pay compensation for the adult’s loss. QCAT can also order a current of former attorney, administrator or guardian to file records and audited accounts of their dealings and transactions entered into on behalf of the principal.

      QCAT or the Supreme Court of Queensland have been provided with additional powers to order that an attorney, guardian or administrator account for any profit accrued as a result of the attorneys failure to comply with their duties and obligations.

      If you are in a position where you would like to consider preparing an Enduring Power of Attorney or Advance Health Directive please contact Jessica Douglas on 4729 6643 or Erlinda Nunn on 4729 6638 who will be able to help you.  



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