Changes to Enduring Powers of Attorney laws

Forthcoming changes to Enduring Powers of Attorney laws will include a proposed national register of enduring power of attorney instruments and changes to the Queensland Powers of Attorney Act to improve consistency with other jurisdictions.

National register of enduring power of attorney instruments

On 29 November 2019, the Council of Attorneys-General (CAG) agreed to proceed with a staged approach to enduring power of attorney reform for financial decisions. Initially this will involve the establishment of a mandatory Commonwealth established and maintained national register of enduring power of attorney instruments, with later reforms to introduce safeguards for principals. Steps will be taken in early 2020 to begin implementing the plan.

Queensland Guardianship and Administration and Other Legislation Amendment Act 2019

The Queensland Guardianship and Administration and Other Legislation Amendment Act 2019 is scheduled to commence on 30 March 2020. The Act amends the Queensland Powers of Attorney Act 1998.

The commencement will coincide with using redesigned Enduring Power of Attorney and Advance Health Directive forms, explanatory guides for those forms and new capacity guidelines.

The amendments will:

• provide that an enduring power of attorney (EPA) may be made by an adult principal outside Queensland so that, where the person lives interstate or overseas and makes an EPA under Queensland legislation, the instrument will be effective in Queensland.
• allow the recognition in Queensland of an EPA made in another state or made in another jurisdiction including New Zealand.
• simplify the certification requirements that a copy of an EPA is a true and complete copy of the original. Instead of certifying each page as is the present requirement, the amended Act will requires only that the copy is certified to the effect it is a true and complete copy of the original.
• provide that an attorney for a financial matter may only enter into a conflict transaction if the principal, or the Supreme Court, has prospectively authorised the transaction.

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Please note that this article has been prepared by Margaret Miller, partner of Bell Legal Group, for information purposes only. It is not legal advice nor should it be relied upon as such.