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Enduring Power of Attorney & Advance Health Directive forms – what’s new?

Changes to Queensland’s guardianship laws took effect on 30 November 2020. As part of those changes, new Enduring Power of Attorney (EPA) and Advance Health Directive (AHD) forms have been introduced.

EPAs and AHDs created before 29 November 2020 using the old forms will remain valid.

However, from 30 November 2020 onward, the new forms will need to be used for these documents to be valid.

What is an Enduring Power of Attorney?

An EPA allows you to appoint someone you trust (your attorney) to make decisions about personal (including health) matters and/or financial matters for you (whilst you are alive).

More information on the importance of this document and how it operates in relation to your estate planning can be found here.

What is an Advance Health Directive?

At some point in the future, you may be unable to make decisions about your health care, even temporarily. An AHD goes further than an EPA and allows you to:

  • give directions to your appointed attorneys for health matters about your future health care; and
  • give health professionals direction about the treatment you want.

This document is personal in nature and there is section you must complete with your doctor.

Under the new AHD, there is now a dedicated section in which you may give specific instructions about blood transfusions.

More information on this document can be found here.

What’s new with the Enduring Power of Attorney forms?

Some notable inclusions in the new EPA forms are:

1. Views, wishes and preferences

There is now a dedicated section in which you may record your views, wishes and preferences – which are to be considered by your attorneys but are not considered instructions (and therefore are non-binding).

For example, these may include:

  • wishes regarding lifestyle matters such as the area you wish to live in; 
  • desire to continue living in your own home for as long as possible;
  • the friends and family you like to see; and
  • cultural and religious concerns.

2. Notice

There is also now a dedicated section in which you may express who your attorney/s must notify when exercising their powers, what kind of notification must be made and when.

For example, you may want your attorney/s to notify yourself, your other current attorney/s or another family member in writing, before they begin exercising their power for the first time.

3. Number of attorneys that can be appointed

There is no limit on the number of attorneys you can appoint in an EPA, except that you can only appoint a maximum of four joint attorneys for a matter (i.e. you can only appoint a maximum of four people who must agree on all decisions).

4.  Capacity requirements

Presently, you must be capable of understanding the nature and effect of an EPA before you can make one.

There is now the added the stipulation that you must also be capable of making the EPA freely and voluntarily.

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.

5. Attorney eligibility

To be eligible to be your attorney, your attorney/s must:

  • have capacity to make the decisions they are appointed for;
  • be 18 years or older;
  • not be bankrupt, if appointed for financial matters;
  • not be your paid carer or have been your paid carer in the last 3 years before their appointment;

A paid carer is someone who is paid a fee or wage to care for a person but not someone receiving a carer’s pension or benefit. A person who is living with you and receives a carer’s allowance from the government can be your attorney.

  • not be your health provider;

A health provider, such as a nurse or medical practitioner who provides care for you, cannot be your attorney.

  • not be a service provider for a residential service where you reside (a residential service is sometimes called a boarding house).

6. Conflict transactions

A conflict transaction happens when there is a conflict between your attorney’s duty to you and their own interests.

Consider a circumstance where you appoint your spouse or adult child as your attorney and your spouse or adult child wishes to buy the family home after you move to a care facility, so as to ‘keep it in the family’ – this is an example of a conflict transaction.

Your attorney cannot enter a conflict transaction unless you (or a Court or the Queensland Civil and Administrative Tribunal (QCAT)) have authorised it.

However, you should seek legal advice before including any such term in your EPA. Allowing an attorney to engage in conflict transactions may have unintended consequences for you.

7. Recognising Interstate or New Zealand Enduring Powers of Attorney

In addition to recognising interstate EPA, a New Zealand EPA may also now be recognised under Queensland law (to the extent the powers they give could have been validly given by an EPA made in Queensland).

Where can I access these new forms? How do I prepare one?

The new EPA forms are available to be downloaded. New explanatory guides for EPAs and AHDs have also been introduced.

This may create a temptation for some to “do it yourself”. However, there are many factors must be taken into account when creating an EPA.

It is vital that the structure of an EPA and AHD is properly thought out and that they include appropriately worded powers, terms and limitations.

If you need assistance in preparing an Enduring Power of Attorney, an Advance Health Directive, or would like to discuss any aspect of your estate plan, please do not hesitate to contact us.  

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Duncan MacDougall

Written by—

Duncan MacDougall

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