Thinking | 7 December 2020

Changes to powers of attorney and advance health directives: Queensland

By Kate Gould

Changes to Queensland’s guardianship laws are now in force. The amendments, which came into effect on 30 November 2020, relate to the Guardianship and Other Legislation Amendment Act 2019 (Qld) (Amendment Act) that was passed by Parliament on 29 March 2019. They include updates to the forms for powers of attorney and advance health directives as well as refinement of the guidelines for assessing an adult’s capacity. Other changes to the guardianship laws cover the application of the presumption of capacity, conflict transactions and remedies for breaches of duties by attorneys, guardians and administrators.

Updated forms for enduring power of attorney and advance health directives

From 30 November 2020, the existing versions of the forms for enduring powers of attorney and advance health directives will be replaced. The new forms reflect the broader legislative changes under the Amendment Act, have been designed to be simpler and more user friendly. They will be accompanied by refreshed explanatory guides to inform users how to correctly complete and execute the documents. Importantly, the new forms must be used from 30 November 2020 and the existing forms should no longer be used.

An enduring power of attorney or advance health directive that has been properly executed using the existing forms up to and including 29 November will remain valid subject to one exception. That is, the new legislative amendments prohibit the appointment of a person as an attorney under an advance health directive if the person is a service provider for a residential service where the principal is a resident. If an existing advance health directive contains such an appointment, it will be revoked on 30 November 2020 to the extent that it affords power to the service provider (Power of Attorney Act 1998 (Qld), s 169).

Capacity assessment guidelines

The legislative reforms also introduce new guidelines to assist people who undertake assessments of an adult’s capacity under the guardianship laws (Guardianship and Administration Act 2000 (Qld); Powers of Attorney Act 1998 (Qld); Powers of Attorney Act 1998 (Qld)). The guidelines provide general information about capacity, capacity assessment and the tests of capacity in Queensland, including:

  • principles to apply when carrying out a capacity assessment;
  • details on the legal tests that apply to capacity for making decisions about personal, health and financial matters, an advance health directive or enduring power of attorney;
  • checklists to use for conducting a capacity assessment; and
  • information, tips and practical guidance for making capacity assessments.

The Private Clients team at Hall & Wilcox has extensive experience in advising clients on the appointment of powers of attorney and formalisation of advance health directives. We can also assist with all aspects of the estate and succession planning process, so please contact a member of our team if you need help with this.

This article was written with the assistance of Michael Henderson, Law Graduate.

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