15 October 2020

New Enduring Power of Attorney and Advance Health Directive Forms

Keith Schrauf

Changes to Queensland’s guardianship laws take effect on 30 November 2020. As part of those changes, the Government has introduced new Enduring Power of Attorney (“EPA”) and Advance Health Directive forms for use from that date onwards.

New, quite detailed, explanatory guides for EPAs and Advance Health Directives have also been introduced. We strongly recommended that you read these guides carefully before making or replacing an EPA or Advance Health Directive.

Like the existing arrangement, there is a new short-form EPA and a new long-form EPA.

The short-form is used if you want to appoint the same person, or combination of people, as your attorney/s for financial matters and for personal and health matters.

The long-form is used if you want to appoint a person or a combination of people as your attorney/s for financial matters and a different person or a different combination of people as your attorney/s for personal and health matters.

Just as you can with the existing EPA forms, the new versions allow you to impose terms or set limits on your attorney/s’ powers. Those terms or limitations are binding on your attorney/s.

Notably, the new forms of EPA add a section which allows you to state your views, wishes and preferences.

You can use this new section of the form to record your wishes regarding lifestyle matters such as the area you wish to live in.

You can also express your desire to continue living in your own home for as long as possible even if it involves receiving assistance with housework and personal care.

Cultural and religious concerns can also be included.

Views, wishes and preferences stated in this part of the form are not binding on your attorney/s, but your attorney/s must take them into account when making decisions for you.

Presently, you must be capable of understanding the nature and effect of an EPA before you can validly make one. The changes to the law retain that requirement but add the stipulation that you must also be capable of making the EPA freely and voluntarily. The witness to your EPA must certify those matters.

This additional requirement is designed to ensure that not only do you understand what an EPA is, but you are not being pressured by someone else into making it.

Generally, Advance Health Directives and EPAs created before 29 November 2020 using the “old” forms will remain valid. However, if you are a resident of a residential service and made an EPA or Advance Health Directive before 29 November 2020 which appoints as an attorney someone who is a service provider for that residential service, the appointment of that person becomes invalid on 30 November 2020.

Like the existing EPA forms, the new EPA forms are available to download from the Internet. This no doubt creates a temptation for some to “Do It Yourself”. However, many factors must be taken into account when creating an EPA.

It is vital that the structure of an EPA is properly thought out and that the EPA includes appropriately worded powers as well as appropriately stated limitations.

If you require advice regarding the new laws or wish to make a new EPA, please contact Keith Schrauf or Tran Vuong.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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