On 30 November 2020 new forms for Enduring Powers of Attorney (“EPAs”) and Advance Health Directives (“AHDs”) were introduced by the Queensland Government. These new forms are mandatory and the previous forms can no longer be used
EPAs are one of the most important documents a person can sign. By executing an EPA, you are giving someone the power to make decisions on your behalf in relation to personal/health matters and financial affairs. An AHD is an additional document which enables you to give someone power in relation to your future health care. We provide further information regarding EPAs here https://crillylaw.blog/2021/02/01/what-is-an-enduring-power-of-attorney-and-why-is-it-necessary/ and AHDs here https://crillylaw.blog/2021/02/09/advance-health-directive-benefits-to-you-and-your-family/.
The key changes to EPAs and AHDs include:
- Explanatory Guidelines have been released for each form. It is important to review these Guidelines as you complete the EPA and AHD;
- You are now able to state your views, wishes and preferences. These are not binding on the attorney, however, your attorneys are required to consider your views when exercising their power. For example, you could specify the area where you wish to live or religious concerns. You are still able to set terms for your attorneys which are binding and must be followed;
- You can nominate persons who your attorneys must notify when exercising their powers, what information they need to provide and when. For example, you may wish for your attorneys to let family members or other attorneys know when they are about to begin exercising their power;
- In your AHD you can give specific instructions about blood transfusions;
- The witness to your EPA must certify that you are capable of making the EPA freely and voluntarily. This is in addition to the prior requirement that the witness be satisfied that you are capable of understanding the nature and effect of the EPA. This change is to ensure that you are not being pressured into making the document;
- Capacity Assessment Guidelines have been introduced which emphasise the presumption that an adult has capacity and that attorneys need to take into account their human rights. The guidelines can be used to determine whether the power has commenced or the support that the adult needs;
- Your attorneys cannot enter into conflict transactions unless authorised by the principal or the Court. A conflict transaction occurs where there is a breach between an attorney’s duty to you and their own interests. An example is where spouses own property jointly which needs to be used for the sole benefit of only one spouse. Authorisation can be obtained retrospectively, however, the attorney would be in breach of their obligation until authorisation is obtained. Conflict transaction clauses should be drafted carefully and limited to particular transactions where possible;
- EPAs made interstate and in New Zealand under Queensland legislation will be recognised in Queensland;
- There are additional eligibility requirements. For EPAs, the attorney must have capacity and must not have been a paid carer for the principal for three years prior to their appointment. For AHDs, an eligible attorney must not be a service provider for a residential service where the principal resides.
Although it is possible to download the forms and complete at home, it is always recommended to obtain legal advice. EPAs have the ability to extend to superannuation, companies and family trusts. It is vital that they contain terms, powers and limitations as appropriate to each individual and their particular circumstances.
If we can assist with preparing your EPA, AHD or any other aspect of your estate plan, please call Tony or Lauren on 07 3317 4313. Otherwise you can go to our website at any time and click “Start your estate plan Now”.