New versions of enduring power of attorney and advance health directive forms come into effect today, 30 November 2020.
These new forms will replace existing versions that have been in place for more than 16 years.
They dictate that the attorney must have capacity for a matter and must not have been a paid carer for the principal in the previous three years before their appointment. Up to four joint attorneys can be appointed and new guidelines for the assessment of capacity will be effective.
MBA Lawyers estate planning expert Joelene Seaton says that reforms have been made to the presumption that all adults have decision-making capacity until proven otherwise, including clarification on the capacity required for an adult to make an enduring document (an advance health directive or an enduring power of attorney)
Some other major changes include:
- The general principles and the health care principles have been updated to be more consistent with human rights, in particular the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). They will also put a greater focus on adults with impaired capacity participating in decision-making
- Reforms to emphasise that attorneys and administrators should seek authorisation in advance before entering a conflict transaction. Although conflict transactions may continue to be authorised retrospectively, until that happens, if an administrator or attorney enters into a conflict transaction they will be taken to have acted against their duty to the principal
- Reforms to clarify that QCAT can order both a current or a former attorney, administrator or guardian to pay compensation for a loss to the adult or the adult’s estate caused by their failure to comply with their duties, to file records and audited accounts of their dealings and transactions conducted on behalf of the adult and to account for any profits accrued as a result of their failure to comply with their duties
- Power for QCAT to appoint an administrator for a missing person, to enable the affairs of the missing person to be managed appropriately
- Changes to ademption rules, so that ademption will not occur and the beneficiary will be entitled to the same interest in any surplus money or other property (the proceeds) arising from a sale, mortgage, charge or disposition or other dealing with the property by the administrator or attorney, as the beneficiary would have had in the property, had it not been sold or otherwise dealt with
- In addition to recognising interstate enduring powers of attorney, New Zealand enduring powers of attorney (to the extent the powers they give could have been validly given by an enduring power of attorney made in Queensland), may also be recognised as valid under Queensland law from 30 November 2020