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New and Improved? What you Need to Know About the Changes to Guardianship Forms

16th November 2020

The Queensland Government has introduced new Enduring Power of Attorney and Advance Health Directive forms, commencing on 30 November 2020.

Aside from stylish new looks, the updated forms also come packed with new features. Whether you do not have any enduring documents in place or are considering updating your existing ones, this article outlines some of the new features to look out for.

Enduring Power of Attorney

The first real change to the Enduring Power of Attorney form comes right at the beginning where you are now able to input "your views, wishes and preferences". This allows you to provide your nominated attorneys with background information for them to consider, such as where you would prefer to live. As these are not instructions, they are not binding on your attorneys but enable you to provide a greater level of personal guidance to them.

Another notable new option is that you may now require your attorneys to notify certain people before they begin using their power of attorney, and/or to provide them with certain financial information (such as financial records or management plans) at times of your choosing. This allows you greater control over how your attorneys must act, but keep in mind it also has the potential to add far more onerous burdens to appointed attorneys.

Advance Health Directive

In a very similar vein to that described above, in the new Advance Health Directive forms you are now able to list your “major health conditions and concerns”, and describe "your views, wishes and preferences". As with the Enduring Power of Attorney forms, these are not designed to be set instructions but are rather to inform and guide your attorneys as to what they might need to consider (such as your personal concerns, religious values, or desire for familial involvement in your health care decisions). These new sections allow you far greater ability to personalise your documents for your own needs.

The new form generally provides you with far greater flexibility in making your health care decisions, with more space available to consent to treatment only in certain circumstances (of your choosing), or to provide directions not otherwise covered by the document.

However, in previous Advance Health Directive forms you were able to choose between providing the details of your current attorneys or appointing new ones. While you are still able to appoint attorneys, there is no longer space to provide current attorney details. This makes it important that when providing your Advance Health Directive to a healthcare provider or residential aged care facility, you consider also providing them with a copy of your Enduring Power of Attorney. It still remains critical that you do not nominate an attorney through this document if you have a current Enduring Power of Attorney in place, so as to avoid accidental revocation of that document.

General Changes

Despite the exciting new features, there are two final notes of caution.

First, a new "Form 8" has been introduced through which you are able to attach additional pages to an enduring document if required. Due to the limited space available in these documents, it is likely you will be forced to use a number of these new Form 8s if you intend on including additional terms (or simply need more space than is available). As completed Form 8s form inherent parts of the enduring documents, ensuring these are properly executed is absolutely essential to avoiding claims of invalidity.

Finally, gone are the days of multi-page explanations throughout the forms, axed in favour of external (and far longer) explanatory guides. With less direct guidance provided, and with the risks of invalidity due to issues with additional pages, it is increasingly important you seek specialist advice prior to making any new enduring document.

If you have any questions about the status of your enduring documents or do not yet have any in place, our specialist Wills & Estates team will be more than happy to discuss your situation.

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