Power of Attorney and Advance Health Directive Forms
On 30 November 2020, new forms for granting a Power of Attorney and making an Advance Health Directive will take effect in Queensland, simplifying how these types of appointments are made.
The new forms can be found here:-
https://www.publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive-forms
These new forms have not been approved for use before 30 November 2020.
The old forms must still be used up until 30 November 2020 and any attorney or health directive appointment that is made prior to this date by correctly using the old forms will still be effective.
The old forms will be removed from the Queensland Government’s website by 1 December 2020 and the newer, user friendly forms must be used on or after that date.
Advance Health Directives are also required to comply with the amended s 29(2) of the Power of Attorney Act 1998 (Qld), which provides that any appointment of an attorney in an Advance Health Directive of a person who is service provider for a residential service where you are a resident will not be effective after 30 November 2020.
Capacity reform
There are also changes that will introduce the new “Queensland Capacity Assessment Guidelines” (‘Guidelines’) made by the Attorney General and Minister for Justice, which contain general information about capacity, guidelines to follow for assessing a person’s capacity to make personal, health and financial decisions for themselves and the legal tests for a person’s capacity to make a Power of Attorney or an Advance Health Directive.
Capacity tests may be utilised for:
- Medical treatments (or whether an adult can consent to a particular procedure);
- Whether an adult requires assistance in understanding a decision or making that decision;
- Deciding whether to apply to the Queensland Civil and Administrative Tribunal (‘QCAT’) for appointment of a guardian or an administrator or providing evidence in such proceedings;
- Deciding if an attorney’s power under an enduring power of attorney has commenced.
The Guidelines can be found here:
The Guidelines also provide principles including (without limitation) that every person with capacity has the legal right to make their own personal, health and financial decisions and when assessing capacity, privacy and dignity must be respected. Capacity is fluid and can be influenced not only by traumatic events (such as car accidents, debilitating injuries, mental illnesses such as dementia or otherwise) but also by the complexity of the decision, support available to the person and the time the decision is made.
Remedies for breach of duty
Where a currently or formerly appointed person (attorney, administrator or guardian) breaches their duties, the reforms now empower QCAT to order not only the payment of compensation to the adult or their estate, but also to account for any profits that may have been derived as a consequence of such breach.
QCAT is also empowered to compel that attorney to file records and audited accounts to explain transactions undertaken on a Principal’s behalf.
Other changes
It is beyond the scope of this article to fully set out all of the incoming changes, which include:
- Entry into conflict transactions (there are different requirements for attorneys, administrators and guardians);
- The rule of ‘ademption’ now has a statutory exemption. Ademption is a legal concept that occurs where a will gifts a specific asset to a beneficiary and at the time of the Will maker’s death, that asset has been lost or is no longer part of the Will maker’s estate due to actions of an attorney or administrator. The exception provides that the beneficiary will no longer just ‘lose out’ and will instead be entitled to the same interest in any surplus money or other property (the proceeds) arising from a sale, mortgage, charge or disposition or other dealing with the lost asset by the administrator or attorney, as the beneficiary would have had in the asset, had it not been sold or otherwise dealt with;
- Protection of whistle blowers who disclose confidential information about persons with impaired capacity;
- Investigative powers for the Public Guardian into claims of neglect, abuse or similar;
- Limitation on the appointment of any person whom has been a paid carer for the appointor (Principal) in the last 3 years prior to the appointment;
- Must not be a service provider of a residential service where the Principal resides; and
- Procedures for QCAT to have the power to appoint an administrator for a missing person, where QCAT is satisfied significant financial harm may be suffered if the appointment is not made. This type of appointment is revoked upon the person turning up alive or by a declaration of death by the Supreme Court, a Coroner or by registration with the Department of Births, Deaths and Marriages; and
- The recognition of Australian interstate and New Zealand Enduring Powers of Attorney that have been validly and correctly made.
Marino Law has extensive experience in assisting clients with Powers of Attorney, Advance Health Directives, Guardianship matters and Wills and Estate Administration. Our Lawyers regularly advise as to the dangers of not properly planning for unforeseen events such as death or incapacity (temporary or otherwise) and the importance of seeking proper legal advice to ensure that you, your hard earned assets and your loved ones are properly and carefully safeguarded should such an event occur.
Please do not hesitate to get in touch with us and speak to one of our experienced lawyers about your own circumstances today.
