Important changes to Queensland’s guardianship system came into effect on 30 November 2020. The changes place a greater focus on consistency with human rights and enabling adults with impaired capacity to participate in the decision making process.
- New guidelines to assist with the assessment of an adult’s capacity to make a decision under Queensland’s guardianship laws; and
- New forms for an enduring power of attorney and an advance health directive.
The new legislative framework and forms have been designed to place a greater focus on consistency with human rights and enabling adults with impaired capacity to participate in the decision making process.
The reforms put additional protective measures in place to:
- Ensure a greater level of transparency when it comes to an attorney entering into a transaction for an adult where there is a conflict of interest (e.g. where a motor vehicle is sold by an adult to an attorney for less than market value);
- Ensure there are broader remedies available when an attorney, administrator or guardian breaches or fails to comply with their duties and obligations (e.g. for victims of financial abuse);
- Ensure that there is an avenue available to a beneficiary who has lost their interest in a specific gift of property that was disposed of by an administrator or attorney during the adult’s life under the enduring power of attorney;
- Shield “whistleblowers” from liability in circumstances where they have disclosed information concerning a breach of the legislation, or assisted with an investigation of a complaint about a breach of the legislation (e.g. in circumstances of abuse, neglect or exploitation); and
- Ensure the Public Guardian can investigate complaints of abuse, neglect or exploitation even after the death of an adult.
The new legislative framework also allows for the recognition of New Zealand enduring powers of attorney.
Please be assured that any enduring power of attorney or advance health directive made prior to 30 November 2020 will continue to be valid and effective moving forward. Accordingly, you do not need to update your existing documents, unless you would like to change your current arrangements.
The only exception to this is where an advance health directive nominates an attorney who is a service provider for a residential service where the adult is a resident (as this is inconsistent with the new legislation). These documents were automatically revoked on 30 November 2020 to the extent of that attorney’s appointment under the document. If you think this situation may apply to you, or someone you know, we encourage you to consider reviewing these arrangements as soon as possible.
We encourage you also to remember that certain life events, such as marriage, divorce, loss of capacity or bankruptcy, may affect the operation and/or validity of an enduring document. It is important that you regularly review your estate planning arrangements to ensure the documents you have in place are appropriate for your circumstances.
Our estate planning experts, Joanne Carusi and Emma Blay, can help you navigate this sometimes-tricky area of law.
If you would like more information, we invite you to get in touch.