In November last year, Jenna Hutchinson wrote about the new Enduring Power of Attorney and Advance Health Directive forms that were being introduced in Queensland. That blog can be found here.

The changes to the forms came about because of a bill passed in April 2019, by Queensland Parliament – the Guardianship and Administration and Other Legislation Amendment Bill (the Bill).

The Bill included amendments to legislation, including the Powers of Attorney Act 1998 (Qld) (the Act) and the Guardianship and Administration Act 2000 (Qld).

The changes came into effect on 30 November 2020, and with those changes was an update to the guidelines for assessing capacity, new Enduring Power of Attorney (EPOA) and Advance Health Directive (AHD) forms, and accompanying EPOA and AHD explanatory guides.

The new EPOA and AHD forms replaced the old forms and are to be used from 30 November 2020. However, fear not, any EPOA or AHD validly signed before that date is still effective.

The objectives of the Bill were, among other things, to amend Queensland’s guardianship legislation to:

  1. provide a focus on contemporary practice and human rights for adults with impaired capacity;
  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.[1]

There may come a time when you are no longer able to make decisions for yourself. In the event that occurs, Queensland legislation provides for documents to be completed to appoint another person or persons to make certain decisions for you.

Those documents and the decisions that may be made, include:

  1. EPOA, which allows an adult (principal) to authorise another person or persons (attorney/s) to make personal and health, and/or financial decisions on their behalf.

    Matters that an attorney may be authorised to deal with on behalf of the principal include:

    1. Financial matters
      1. paying maintenance and accommodation expenses for the principal and the principal’s dependant/s, e.g. paying a nursing home bond, mortgage, rent, or the like;
      2. paying the principal’s debts and repaying mortgages, withdrawing from, and depositing money into, the their bank account/s;
      3. receiving or recovering money;
      4. carrying on the principal’s trade or business;
      5. performing contracts for the principal and/or real estate transaction/s and dealing with land;
      6. paying rates, taxes, insurances and other outgoings;
      7. investing in authorised investments or continuing investments; and
      8. legal matters relating to financial or property matters of the principal.
    2. Personal matters
      1. where and with whom the principal lives, and who may visit or contact the principal;
      2. services provided to the principal;
      3. whether the principal undertakes employment, and if so, where, the type of work, and the employer;
      4. education and training;
      5. licences and permits;
      6. day to day issues, such as diet and dress;
      7. whether to consent to forensic examination of the principal;
      8. health care; and
      9. legal matters not related to financial or property matters, and advocacy relating to the principal’s care and welfare.

    The “Enduring” in Enduring Power of Attorney means the power given by the EPOA continues after the principal loses capacity to make decisions for themselves.

  2. AHD, which allows an adult to give directions about their future health care, including for special health matters.

It also allows the adult to appoint an attorney to make decisions about health matters for the adult if their directions (in their EPOA) are inadequate.

The AHD operates only while the adult does not have capacity to make decisions about the matter i.e. if the adult regains capacity, they will be able to make decisions for themselves.

Special health matters may include removal and donation of body tissue, sterilisation, termination of a pregnancy, participation in special medical research, electroconvulsive therapy or a non-ablative neurosurgical procedure and/or prescribed special health care.

It is an unfortunate reality that a person may someday need someone else to make decisions for them. With the reforms to the legislation, coupled with the right advice in relation to your EPOA and/or AHD, your rights, health and assets can be adequately protected.

If you need to make or update your EPOA and/or AHD, or you have any questions in relation to your EPOA, AHD or will, please contact Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson, Kelly Gatehouse and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.

[1] Explanatory Memorandum, Guardianship and Administration and Other Legislation Amendment Bill, p.1