The power of change – EPA changes increase control and clarity

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Even a small change can have a big impact. Changes to Enduring Powers of Attorney (EPAs) and Advance Health Directives in Queensland came into effect on 30 November 2020, updating decades-old forms and adding provisions for some previously grey areas.

These were legislative changes to the Powers of Attorney Act 1998 (Qld) and are specified in the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (GAOLA Act).

Some of the more notable changes made under the GAOLA Act include:

  1. Introduction of a new EPA form;
  2. Clearer capacity assessment guidelines; and
  3. Recognition of interstate or New Zealand EPAs.

We’ve broken down these changes and their impacts below.

New EPA form

The new form follows much the same format as the old form, but in a more user-friendly layout. There are some additional items, however, that Principals can now turn their minds to:

  1. Principals can now include direction to their Attorneys regarding their views, wishes and preferences. Attorneys must take these views, wishes and preferences into consideration when acting in their capacity as Attorney.
  2. Principals can now nominate an individual who must be kept informed of decisions made, including the fact that the Attorney’s power has commenced as well as every decision made by the Attorney.

While these changes allow for more control and transparency, it’s worth remembering that the overarching obligation when acting as an Attorney is to act in the best interests of the Principal. Before including these views, wishes or preferences, or nominating an individual who must be kept informed, Principals should be made aware of the additional obligations they are placing on their Attorneys and consider if they are necessary.

Capacity assessment guidelines

There are now clear guiding principles to assess a person’s capacity to enter into an EPA or for when an Attorney’s power should commence.

The presumption must be that the Principal has capacity; however, the guidelines consider the way the Principal makes decisions and their ability to communicate their reasoning for making decisions.

Recognising interstate or NZ EPAs

The GAOLA Act has also confirmed the positions in Queensland that:

  1. A Queensland EPA can be made by an adult outside of Queensland and that instrument will be valid in Queensland; and
  2. An EPA made in another State or Territory in Australia or made in New Zealand will be recognised in Queensland.

What does this mean for you?

These are broadly positive changes, but gaining quality advice is always key to ensure the correct powers are instated. We have seen instances where the incorrect EPA form has been used, rendering the Attorney’s appointment invalid. Whilst some people can easily rectify this situation, some will be unable to because of a change to their capacity.

For any advice regarding EPAs or Estate Planning, please contact a member of our team.

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