From 30 November 2020, the Enduring Power of Attorney (EPA) and Advance Health Directive (AHD) forms that have been used for nearly 20 years in Queensland will be replaced by new versions. These changes accompany the amendments to the Powers of Attorney Act 1998 (Qld) that were brought in by the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (Amendment Act), which include:
- Explanatory guides to accompany the new forms
- Capacity assessment guidelines
- Changes to general principles and health care principles
- Conflict transactions
- Further eligibility requirements for attorneys
- Recognising interstate or New Zealand enduring powers of attorney
New Forms and Explanatory Guides
The new forms are arguably more user friendly, and the explanatory guides help users to complete these forms correctly.
Some notable inclusions in the new forms are:
- A dedicated section in which the principal may record their views, wishes and preferences, which are to be considered by the attorneys but are not considered instructions.
- A dedicated section in which the principal may express who the attorney(s) must notify when exercising their powers, what kind of notification must be made and when.
- (For an AHD) A dedicated section in which the principal may give specific instructions about blood transfusions.
Capacity Assessment Guidelines
The capacity assessment guidelines are designed to assist witnesses to an EPA/AHD when witnessing a principal’s signature and family members, health professionals and financial institution workers when determining whether or not attorneys should be making decisions on behalf of a principal.
The guidelines emphasise the presumption that an adult has capacity and that attorneys should take into account the human rights of the principal.
The guidelines also include a 6-step checklist to assist in conducting a capacity assessment and details on the different legal tests that are applied for different kinds of forms and decisions.
Changes to General Principles and Health Care Principles
While the relevant legislation prior to the Amendment Act contained general principles and health care principles in relation to enduring documents, these have been given more prominence under the new legislation and have been updated to be more consistent with human rights in respect to adults with impaired capacity participating in decision-making.
Updated general principles include:
- An additional focus on the fundamental freedoms of the individual, including respect for their inherent dignity, worth, autonomy and independence, and their right to non-discrimination, equality and accessibility;
- An obligation on attorneys to perform their duties in a way that promotes and safeguards the individual’s rights, interests and opportunities and is least restrictive of those rights, interests and opportunities;
- A 4-step process that attorneys should undertake in making decisions for an individual.
Health care principles assist attorneys in making decisions regarding the principal’s health matters and special health matters.
Updated health principles include:
- An obligation on attorneys to adopt both the general principles and the health principles when performing a function or exercising a power in relation to health care or special health care;
- A similar additional focus on fundamental freedoms of the individual as is found in the updated general principles;
- An expansion of the factors that need to be taken into account when performing a function or exercising a power in relation to health care or special health care.
Attorneys need to be aware of all of these principles as they must apply them when performing their duties as attorney.
The changes specify that an attorney for a financial matter may only enter into a conflict transaction (for example, a transaction between themselves in their individual capacity and in their capacity as attorney for the principal) if the principal, or the Supreme Court, has authorised the transaction.
While this authorisation should be obtained in advance, retrospective authorisation may be granted by either the principal (if they have capacity) or the Court; however, until such authorisation is obtained the attorney is taken to have acted in breach of their obligation to obtain authorisation.
Further Eligibility Requirements
In addition to current requirements, the new legislation provides that an eligible attorney under an EPA:
- must have capacity for a matter; and
- must not have been a paid carer for the principal in the previous 3 years before their appointment.
In addition to current requirements, the new legislation provides that an eligible attorney under an AHD must not be a service provider for a residential service where the principal resides.
Recognising Interstate or New Zealand Enduring Powers of Attorney
Under the changes, an EPA may be made by an adult principal outside Queensland so that, where the person lives interstate or overseas and makes an EPA under Queensland legislation, the instrument will be effective in Queensland.
EPAs made in another state or made in another jurisdiction including New Zealand will also be recognised in Queensland.
If you have any queries about the upcoming changes or would like to discuss any aspect of your estate plan, please don’t hesitate to contact us.