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Enduring Power of Attorney – be aware of changes coming to guardianship laws and forms

Couple signing enduring power of attorney document

In order to improve consistency across all jurisdictions, changes to Enduring Powers of Attorney laws will come into play in Queensland on 30 November 2020. This presents an opportunity for everyone to review their existing documents, or for those who have not made an Enduring Power of Attorney, to understand why these are imperative to make, explains Attwood Marshall Lawyers Senior Associate Hayley Condon.

Introduction

There have been some major changes to Enduring Power of Attorney and Advanced Health Directive forms, along with amendments to the Powers of Attorney Act 1998 (QLD), brought in by the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (Amendment Act). These changes come into effect on 30 November 2020. For those who have not yet put an Enduring Power of Attorney in place, now is the time. If you are over 18 and have decision-making capacity, you can and should be making an Enduring Power of Attorney.

Reviewing your Enduring Power of Attorney documents may seem like a mundane task you want to put at the bottom of the pile, however it’s important especially with changes to legislation coming into effect. Reviewing these documents gives you an opportunity to ensure you have appointed the most appropriate attorneys to act for you who will look after your best interests.

For anyone without an Enduring Power of Attorney, these changes are a great reminder as to why it is important to make one and ensure your legal affairs are in order in the event something unexpected happens.

What is an Enduring Power of Attorney (EPOA)?

An Enduring Power of Attorney is a document that an adult can put in place while they have mental capacity to appoint people, called their attorneys, to make financial as well as health care/lifestyle decisions for them in the event they lose the mental capacity to be able to make those types of decisions in the future.

The role of an attorney in an Enduring Power of Attorney is often confused with the role of the Executor in a Will. An Enduring Power of Attorney will apply while an adult is still alive but has lost capacity. The attorney will then step into that role and make decisions for them. Whereas with a Will, it will come into effect when an adult has passed away and the role of the Executor is to administer the estate and distribute the assets between the beneficiaries named in the Will.

Your attorney is your decision-maker when you are no longer able to make decisions for yourself and manage your own affairs.

The types of decisions your attorney can make include but are not limited to, buying and selling property, operating bank accounts, dealing with government agencies and other organisations, paying bills, as well as lifestyle and health-related decisions. An attorney appointed by a Power of Attorney has significant responsibilities under the law

Why is it important to have an Enduring Power of Attorney?

An Enduring Power of Attorney allows an adult to legally appoint the person, or people, that they want to make the important decisions in their life if they lose the ability to do that for themself in the future.

If an Enduring Power of Attorney is not in place and an adult loses capacity, at that point it is too late. You cannot put an Enduring Power of Attorney in place because you need to have mental capacity to be able to understand the document to do so.

In that scenario, an appointment would be made by the Queensland Civil and Administrative Tribunal (QCAT). Once an application is made, QCAT will decide who will be appointed. That may be a family member or even The Public Trustee.

The person appointed may not be someone that the adult would prefer to make decisions for them.

A common misconception that exists in the community which we come across quite often is the belief that when a couple are married or in a de facto relationship, that they have the legal ability to make decisions for their spouse, in particular financial decisions, if their spouse loses capacity. That is simply not the case.

If an Enduring Power of Attorney is in place and it appoints a spouse as an attorney, then they can make those decisions.

If an Enduring Power of Attorney is not in place, then a spouse would have to apply to QCAT to be appointed as an administrator for their spouse, which would then grant them the necessary power to make financial decisions.

Another common comment we hear people say quite often is “I won’t ever lose capacity – that won’t happen to me”. No one has a crystal ball, and no one knows what the future holds. People certainly don’t plan to have an accident, injury or illness. There is absolutely no way of knowing what could be around the corner.

There is also this idea that Enduring Powers of Attorney are only relevant to dementia and will take effect if an adult is suffering from dementia. Although this is true, there are other circumstances where Enduring Powers of Attorney are important and will take effect.

For example, you are driving down the highway and you are involved in an accident. You are seriously injured but you survive, however you have been left with a brain injury where you don’t have the ability to manage your affairs. That is a situation where an adult needs an Enduring Power of Attorney in place so their appointed attorneys can take over and make the necessary decisions for them. If it is not in place, it is too late. That is a situation that can happen to anyone, especially on our roads today.

What should people know when deciding who to appoint as their attorney?

You must carefully consider who you appoint as your attorney. It needs to be someone you trust implicitly and believe will make decisions in your best interests.  Remember your attorneys are your advocates and will have a significant amount of decision-making power in your life.

Deciding who are the most suitable people to appoint as your attorneys can often be a difficult decision and each family situation is different.  This is why it is important to obtain legal advice when making an Enduring Power of Attorney. A solicitor can give you advice about appointment of attorneys, in particular appointing a reserve attorney if your primary attorney is not able to fulfill their duties, and whether in your case it is appropriate to appoint more than one attorney to act jointly so the attorneys can keep each other in check.

When an attorney’s power takes effect, the adult will usually be in a very vulnerable position because they have lost capacity. Things can go very wrong if the right people are not appointed.

What are the changes coming into effect to guardianship legislation and Enduring Power of Attorney forms?

As of the 30 November 2020, there will be a new Enduring Power of Attorney form and a new Advance Health Directive form.

If an adult is making an Enduring Power of Attorney before the 30th November, they must still use the current forms.

It is important to note that the new forms should not be used prior to this date as they will not be valid. People need to be aware of these changes as the new forms are circulating and are readily available on the Queensland Government website.

There will be no transition period therefore the new forms must be used from 30 November.

If you have an Enduring Power of Attorney in place or put an Enduring Power of Attorney in place using the current form before 30 November 2020, they will still be valid subject to a few limited exceptions.

With the changes commencing on Monday, it is a good time to get your Enduring Power of Attorney out of the filing cabinet, dust it off, and have a solicitor review it to ensure it reflects your wishes and that it is valid. You don’t want to be left in the situation where you lose capacity, your attorneys know you have an Enduring Power of Attorney in place, they locate the document and unfortunately there are problems with it.

What will be different once the new forms are used?

There are significant changes to the Enduring Power of Attorney forms, which will have an impact on what types of questions the adult who is putting the document in place will need to answer and consequently the responsibilities of the attorneys appointed.

There will be new capacity guidelines addressing how capacity is assessed.

The adult making the Enduring Power of Attorney will also have more opportunity to set out specific views, wishes and preferences they may have regarding their personal, health and financial matters. Although this information is only optional and is not legally binding on the attorneys, it does provide the attorneys with a more comprehensive outline of the intentions of the principal. These details may assist an attorney when making important decisions on their behalf.

Like the current form an adult will still be able to set certain terms and limitations on the powers of their attorneys, however the forms now allow the principal to direct their attorneys to notify another person nominated in the form about certain decisions made by them. This means that another trusted individual of the adult can oversee the decisions being made by the attorneys to ensure the attorneys are making decisions in the best interest of the adult.  While this new power in the form provides a further layer of protection for the adult, you need to be careful when deciding what notification obligations you are imposing on your attorney because if they are too onerous your attorneys may refuse to act or you could put them in a situation where they inadvertently breach their duties which may result in serious consequences for them.  A solicitor will be able to give you advice as to what notification terms you should include in your Enduring Power of Attorney to suit your circumstances. the

Who is an eligible attorney has also changed. From the 30 November you will not be able to appoint a person who has been your paid carer in the 3 years prior to the appointment.

The above changes are not exhaustive of all the changes coming, you can visit the Queensland Government website to find out further details.

Why is it important to seek legal advice when making an Enduring Power of Attorney and not simply download the form online?

An Enduring Power of Attorney is an important legal document. The document may appear fairly simple to complete at first glance, but where solicitors really play their part is not on how to physically complete the form but giving advice regarding the structure of the form, the attorneys to appoint, and what additional terms should be included in the document to assist the attorneys in their role and to make it clear to them what your wishes are while they are undertaking that role.

If you have an electrical problem in your home, who do you call? You call an electrician. If you have a health issue, you go see your doctor because they are qualified to give you that advice. This is no different for an Enduring Power of Attorney. It is a legal document and it is a very powerful document. It is extremely important that you get the document right the first time.

How can Attwood Marshall Lawyers help?

We’re here to help you achieve peace of mind that if anything suddenly changes with your health or personal circumstances, you have your legal affairs in order and your best interests will be taken care of.

Attwood Marshall Lawyers have a team of lawyers who practice exclusively in this area. They can consider how these documents should be structured to suit your individual needs. Our lawyers can clearly explain all the information so that the person making the document can fully understand the obligations and duties of their attorney as well as the consequences their attorney may face if they breach their duties.

Read more: Estate Planning 101
Read more: Appointing Guardians and Attorneys

For a complimentary 20-minute estate planning review please call anytime on 1800 621 071. Contact Wills and Estates Department Manager, Donna Tolley, directly on 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au

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Hayley Condon

Hayley Condon

  • Senior Associate
  • Family Law
  • Direct line: (07) 5553 5805
  • Mobile: 0413 486 402