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Major changes to Enduring Power of Attorney, Enduring Guardian and Advanced Health Care Directive laws

The State’s most vulnerable, such as the elderly and mentally impaired, have become better protected as significant changes to the State’s guardianship laws come into effect across Qld.

The Guardianship and Administration and Other Legislation Amendment Bill 2018 was passed in March in response to Queensland Law Reform Commission’s review of laws governing the State’s guardianship system.

The bill acts on the Commission’s recommendations to strengthen the focus on contemporary practice and human rights for adults with impaired capacity, to enhance safeguards for adults with impaired capacity and improve the efficiency and clarity of Queensland’s guardianship system.

The bill is extensive, taking under its ambit a range of legal documents, instruments and administrative bodies, which deal with the appointment, duties and functions of medical and financial guardians. The new laws also interact with existing laws about succession and advanced health care.

Enduring Guardians

One aspect of the legal reform deals with Guardians appointed through Enduring Guardian (EG) and Enduring Power of Attorney documents (EPOA) and Administrators appointed by Queensland Civil and Administrative Tribunal.  Administrators and/or Guardians make personal, health and financial decisions on the behalf of a person who has lost capacity. A person of any age can lose capacity with a mental illness, brain injury, dementia or other disease. Administrators can make financial decisions, and legal decisions related to financial matters, on behalf of the adult. Guardians can make decisions on personal, health and lifestyle matters as well as other legal matters not related to the adult’s finances or property.

The new laws ensure:

  • Persons meet strict eligibility requirements before they can be appointed to be someone’s Guardian under an EPOA
  • Clarified capacity tests are met before an adult can execute an EPOA

Guidelines to assist in the assessments of capacity to be progressed alongside other reforms being carried out by the Department of Justice and Attorney-General, including the review of Advance Health Directive and EPOA forms, and the preparation of explanatory guides to assist Queenslanders to engage in advance planning.

Advanced Health Care Directives

The amended legislation deals with health decisions which need to be made in a hospital setting once a person has lost capacity. In Qld, in such situations, as Advanced Health Care Directive come into play.

The new laws ensure:

  • Clarified capacity tests are met before an adult can execute an Advanced Health Directive

My Health Record

Advanced Health Care Directives can be stored on My Health Record – an online storage and management system for each individual’s health information, such as prescriptions, vaccinations, allergies, and results of pathology tests.

My Health Record only contains a summary of your health information, not a detailed record like your GP would keep. My Health Record is administered by the Australian Digital Health Agency (ADHA). Summary information flows into your My Health Record from Medicare, GPs, public and private hospitals, specialists, pathology, diagnostic imaging, allied health, and aged care.

Many people already have a My Health Record already as it’s been available for several years. It was previously known as a Personally Controlled Electronic Health Record (PCEHR) or eHealth record. However, now all Australians will have a My Health Record made for them automatically unless they opt out by 31 January 2019.

Other areas of amendment

ADEMPTION

The term ademption refers to the circumstances where a gift dealing with specific property under a will fails because that property has since been sold or otherwise disposed of. The amendments passed include the introduction of a statutory exception to ademption.

When an attorney under an EPOA or as an administrator deals with the testator’s property that is a gift under a Will, the beneficiary is entitled to the same interest in any surplus money or other property arising from the sale or other dealing with the property. This will give effect to the testator’s intentions before he or she lost capacity.

CONFLICT TRANSACTIONS

  • Prohibitions exist to stop Attorneys and Administrators from entering into conflict transactions;

ELDER ABUSE

  • Protections are in place for whistle-blowers who disclose confidential information about conduct they believe could involve abuse, neglect and exploitation of an adult with impaired capacity;

ATTORNEY’S DUTY TO ACT

  • Queensland Civil and Administrative Tribunal has greater power to order an attorney who fails to comply with their obligations to pay compensation and to appoint an administrator for a missing attorney;

Attwood Marshall Lawyers

The new laws are welcome and have broad reach, as we will all at some point be touched by the guardianship system. It is important you seek legal advice when drafting EG, EPOA, Will and Advanced Health Care Directive documents. It is important those documents preserve your wishes and preferences for your future care and needs. Your legal representative may have a thorough knowledge of the new Qld laws and how they can affect your situation.

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Alina Derevyanko

Alina Derevyanko

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