As of 30 November 2020, new Enduring Power of Attorney (“EPOA”) and Advance Health Directive (“AHD”) forms have come into effect under the Powers of Attorney Act 1998 (Qld) to replace the previously existing forms which had been in effect for more than 16 years.
It is important to be aware that whilst any Enduring Power of Attorney or Advance Health Directive on the old form which is signed before 30 November 2020 is still effective, any forms completed on the old form after 30 November 2020 will be invalid.
The new forms are intended to be simpler and more user friendly, with explanatory guides to help users complete the forms correctly.
Some of the changes in the new and improved forms include:
- For an EPOA:
- A dedicated section in which the principal may record their views, wishes and preferences, which are to be considered by the attorneys but are not considered instructions.
- A dedicated section in which the principal may express who the attorney(s) must notify when exercising their powers, what kind of notification must be made and when.
- For an AHD:
- A dedicated section in which the principal may give specific instructions about blood transfusions.
New capacity assessment guidelines
From 30 November 2020, new Queensland Capacity Assessment Guidelines 2020 (capacity guidelines) are also in effect. The guidelines assist with providing information regarding capacity, capacity assessment and the legal tests of capacity in Queensland.
The capacity guidelines are relevant for Queensland’s guardianship legislation (the Guardianship and Administration Act 2000 and Powers of Attorney Act 1998) and, can be found by clicking this link.
The capacity guidelines should be used in the following circumstances:
- deciding if an adult can consent to medical treatment.
- deciding if an adult needs more support with making decisions.
- providing evidence to the Queensland Civil and Administrative Tribunal (QCAT) or Supreme Court about an adult’s capacity.
- deciding whether to apply to QCAT for appointment of a guardian or an administrator.
- deciding if an attorney’s power under an enduring power of attorney has commenced.
Changes to the general principles and health care principles
To be more consistent with human rights, particularly the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the general principles and the health care principles have also been updated.
The changes put a greater focus on adults with impaired capacity participating in decision-making and clarify that any person or entity performing a function or exercising a power under the guardianship legislation must apply the general principles and health care principles – this includes:
- attorneys
- guardians
- administrators
- statutory health attorneys
- informal decision makers
As a result of the new changes, the Supreme Court and the Queensland Civil and Administrative Tribunal (QCAT) are also required to apply the general principles and health care principles for all guardianship matters, including when determining an adult’s capacity to make their own decisions.
Eligibility requirements for attorneys
New eligibility requirements for attorneys appointed under an Enduring Power of Attorney or an Advance Health Directive have also come into effect noting that in addition to the previous existing requirements, to be an eligible attorney you:
- For an EPOA:
- must have capacity for a matter.
- must not have been a paid carer for the principal in the previous 3 years before their appointment.
- For an AHD:
- must have capacity for health matters.
- must not be a service provider for a residential service where the principal resides.
NOTE* a paid carer is someone paid a fee or wage to care for a principle, but not someone receiving a carer’s pension or benefit.
Whilst the new forms do have more in depth guidelines to follow, these are important legal documents that can significantly affect your legal rights. It is imperative that you seek independent legal advice to assist with completing the forms.
Our highly skilled Wills & Estates Lawyers are here to assist, please contact our friendly legal team on 07 5563 8970 to arrange your free initial consult today.
