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Important legislative changes in Queensland came into force from 30 November 2020.
These changes are contained in the Queensland Guardianship and Administration and Other Legislation Amendment Act 2019, which among other Acts amends the Powers of Attorney Act 1998.
The amendments are designed to provide stronger protections for the elderly against financial abuse and exploitation, and also ensure the legislation better reflects current human rights practice in regards to adults with impaired capacity as set out in the United Nations Convention on the Rights of Persons with Disabilities.
To this end, the changes strengthen the eligibility requirements for an attorney appointed under an EPOA and restrict who may be appointed an attorney under an advance health directive (‘AHD’).
An EPOA authorises a person or persons to make personal and/or financial decisions on behalf of a principal, or give directions about their future health care, and continues in force once the principal loses capacity to make such decisions.
By creating an AHD, a principal can provide instructions about their future health care, and comes into effect once that person’s capacity to provide such directions becomes impaired. The AHD may also appoint a statutory health attorney for the principal, a trusted person who can automatically make health decisions for a principal with impaired capacity.
This article will provide more detail on what the amendments mean for an EPOA.
The motivation for these changes is to prevent unsuitable or inappropriate people from acting for a person with impaired capacity under an EPOA.
The legislative changes introduce stricter eligibility requirements for someone to be appointed as another adult’s guardian – someone empowered to make health and care decisions for that adult – under an EPOA. They also more clearly define the capacity tests an adult must meet before they are able to execute an EPOA.
An eligible attorney, for example, must not have been a paid carer for the principal in the previous three years. Additionally, providers of residential care for a principal – such as an aged care home provider – are not able to act as the principal’s attorney or statutory health attorney under an AHD.
Other significant changes include:
- An EPOA may be made by an adult principal who lives interstate or overseas but if it is made under Queensland legislation, it will be effective in this state.
- Recognition in Queensland of an EPOA made in another jurisdiction such as another Australian state or New Zealand.
- Rather than the current requirement to certify each page of a copy of an EPOA, the copy now only needs to be certified to the effect it is a true and complete copy of the original.
- An attorney for a financial matter may only enter into a conflict transaction – where the attorney’s duty to the principal conflicts with the attorney’s interests – if the principal, or the Supreme Court, has prospectively authorised the transaction.
As of 30 November 2020, new forms reflecting these changes will be available for the making of an EPOA and an AHD. These forms are designed to be simpler and more user friendly, including new explanatory guides on how best to complete them.
Changes to QCAT Powers
The Queensland Civil and Administrative Tribunal (QCAT) is empowered to make a declaration about whether an adult has capacity to make an EPOA, and also decide on both the validity of an appointment or the administrator’s actions.
The upcoming changes now allow QCAT to order an attorney (or former attorney) to compensate a principal, or a principal’s estate, if the attorney has caused a loss to the principal by failing to comply with the legislation. This removes the uncertainty where QCAT had earlier decided its jurisdiction ended once the EPOA instrument was revoked on the death of the principal, and therefore a ‘former attorney’ could not be ordered to pay compensation to the principal’s estate.
Seek legal advice
At South Geldard Lawyers, the making of an EPOA is one of our specialty legal areas. Every day we help people prepare for a time when they may no longer be able to make important decisions about their financial wellbeing and health.
If you need more detailed information about how any of the changes we’ve outlined in this article apply to you, whether you’re making an EPOA or are asked to act as someone’s attorney, we can provide timely, relevant advice. Call our Rockhampton Solicitors friendly team today (07) 4936 9100 for an initial appointment.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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