A number of important changes came into effect on 30 November 2020 in relation to making an Enduring Power of Attorney (‘EPOA’), as part of reforms to Queensland’s guardianship laws.
The intention of the amendments are to provide stronger protections for the elderly against financial abuse and exploitation and preventing unsuitable or inappropriate people from acting for a person with impaired capacity under an EPOA. The changes also ensure the legislation better reflects current human rights practice in relation to adults with impaired capacity, in line with the United Nations Convention on the Rights of Persons with Disabilities.
The changes strengthen the eligibility requirements for an attorney appointed under an EPOA and restrict who may be appointed an attorney under an advance health directive (‘AHD’). The new laws also clarified the capacity tests to be met before a person can execute an EPOA.
An EPOA provides for a person (the principal) to appoint a person or persons (the attorney) to make personal (including health) and/or financial decisions on their behalf and continues in force once the principal loses capacity to make their own decisions.
We set out below some of the major changes.
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Stricter eligibility requirements regarding who can be an Attorney
Stricter eligibility requirements for the appointment of an EPOA under the new guardianship laws include that an eligible attorney must not have been a paid carer for the principal in the previous three years. Also, providers of residential care for a principal, such as an aged care home provider, cannot act as the principal’s attorney or statutory health attorney under an AHD.
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Retrospective authorisation of conflict transactions
A person acting under an EPOA for a financial matter for the principal may only enter into a conflict transaction – where the attorney’s duty to the principal conflicts with the attorney’s own financial interests – if the conflict transaction has been authorised. This authorisation can be given by the principal (if the principal has capacity), either specifically or by the terms of the EPOA, or by the Court. In this context “the Court” means the Queensland Civil & Administrative Tribunal “QCAT” or the Supreme Court. Previously conflict transactions could only be authorised by the Principal or by QCAT before they took place. The amendments now allow QCAT to retrospectively authorise conflict transactions after the conflict transaction has taken place.
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Protection for whistleblowers
The new legislation also offers enhanced protections for whistleblowers who report confidential information they believe constitutes abuse, neglect and/or exploitation of an adult with impaired capacity.
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New Forms
From 30 November 2020, new forms for the making of an EPOA and an AHD in Queensland were also implemented. The new forms are designed to be clearer and more user friendly, including new explanatory guides on how to complete them.
The new EPOA form includes a new section which allows for the principal to state their wishes and preferences.
The new form also includes an important new section allowing the principal to impose notification obligations on the attorney. By completing this section, the principal can require an attorney to notify certain people in writing of certain information (for example, when the attorney commences using their powers, and when the attorney deals with the principal’s finances and assets). The notification obligations can ensure that other family members are aware of an attorney’s actions when acting for a principal and minimize the risk of attorney misconduct.
From 30 November 2020, those making an EPOA in Queensland should use the short form (Form 2) or long form (Form 3). The short form is used to appoint:
- attorney(s) for personal (including health) matters only;
- attorney(s) for financial matters only;
- the same attorney(s) for both personal (including health) matters and financial matters.
The long form should be used when appointing different attorneys for personal (including health) matters and for financial matters.
If a person made an EPOA before 30 November 2020 using the approved form at the time, it remains valid after that date. Should a person accidentally use the previous form after 30 November 2020, legal advice should be sought to check the validity of the document.
Making an EPOA? Talk to Delaney & Delaney
Making an EPOA is a process that requires careful thought and consideration, from your choice of attorney to the powers they are given and the circumstances in which those powers are exercised.
While the most recent changes to Queensland’s guardianship laws offer some extra protections for those who make an EPOA, legal advice from trusted advisors who are experienced in this area of the law is essential when making and EPOA.
We have over a century’s experience in advising clients on matters such as the making of an effective and valid EPOA. Call us today on (07) 3236 2604 or email: admin@delaneyanddelaney.com.au