Updates to Queensland’s guardianship laws are set to commence on 30 November 2020. The changes include the release of new forms to make an Enduring Power of Attorney and an Advance Health Directive. The new forms will replace the existing forms which have been in place for over 16 years.
Any Enduring Powers of Attorney or Advance Health Directives made from 30 November 2020 onwards must be made using the new forms in order to be valid. Importantly, the new forms are not approved for use before 30 November 2020 and must not be used before that date.
Any Enduring Powers of Attorney or Advance Health Directives correctly and validly made using the existing forms on or before 29 November 2020 will, subject to one exception, remain valid thereafter. It will therefore not be necessary for anyone who already has valid forms in place to make new ones unless they wish to make changes to their existing arrangements in general. The exception to this is where an existing Advance Health Directive appoints as an attorney a person who is a service provider for a residential service where the principal (that is, the person who appointed the attorney) is a resident. If an existing Advance Health Directive contains such an appointment, it will be automatically revoked on 30 November 2020 to the extent that the document gives power to that particular attorney. Anyone who has appointed a service provider as their attorney in an existing Advance Health Directive should therefore consider updating their Advance Health Directive as a priority before the changes take effect.
It is otherwise important to bear in mind that, notwithstanding the upcoming legislative changes, there are certain life events affecting either the principal or their attorney which may have an automatic impact on the continuing validity or operation of enduring documents. These life events include, but are not limited to, relationship changes affecting the principal (such as getting married or divorced) and changes in circumstances affecting the attorney (such as the attorney losing capacity, becoming bankrupt or becoming a paid carer of the principal). It therefore remains vitally important that people regularly review their estate planning affairs to determine whether they remain appropriate for their personal circumstances and, if they are no longer appropriate, to update relevant documents as soon as possible.
If you are concerned about how the upcoming changes to Queensland’s guardianship laws might affect you or if you wish to review your estate planning generally, please contact our experienced Estates and Succession team.