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Expecting the unexpected: Queensland's new enduring powers of attorney

04 January 21 - In the News

Publication: Queensland Country Life
Publisher: Fairfax Media
Authors: Holding Redlich special counsel Laura Hanrahan and senior associate Ainsley Savage

Important changes to enduring powers of attorney and advance health directives in Queensland came into place on November 30. Included in these changes were new prescribed forms for enduring powers of attorney and advance health directives signed on and from November 30.

The new enduring power of attorney forms prompt the maker to consider a broader range of issues than the previous forms. While not a requirement, the form invites the maker to:

  • Consider and articulate their views, wishes and preferences which they would like their attorneys to know and understand to assist in their decision-making.
  • Choose who their attorneys must notify for actions taken in relation to both personal or health matters and financial matters. If the maker requires the attorney to notify any person, they will also need to consider how much information is required to be provided to that person.

These measures have been introduced as a way of safeguarding the maker against potential abuse by their attorney and introduces a consultation process between the maker and the attorney.

Given the recent focus on elder abuse and the introduction of these new measures, it is now more important to ensure that you plan for an event, such as your loss of capacity, to avoid any unnecessary family dispute which may lead to litigation. Litigation is not limited to contesting a deceased person's estate but, more commonly now, includes challenging the management of a person's affairs during the time they lacked capacity.

Now is the time to plan for your loss of capacity. Once you have lost capacity, you lose the ability to nominate an appropriate person to manage your affairs. Where you have both business affairs and personal affairs to manage, you should seek legal advice to assist you with formulating the best strategy to ensure both your business and personal affairs are managed appropriately in the event you lose capacity to make your own decisions.

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