Keeping your Enduring Power of Attorney up-to-date

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Queenslanders have been able to make an Enduring Power of Attorney (“EPOA”) since 1990, however the powers given have significantly changed over the years. If you prepared an EPOA before 1998 or your circumstances since creating an EPOA have changed, you may want to consider updating this document. This is because any EPOAs completed before 1998 and using the former Form 16A will limit an attorney’s powers to purely financial matters. You are now able to appoint an attorney to act on your behalf in a wider scope of matters which include personal and health decisions.

Old Legislation – Form 16A Enduring Power of Attorney

In 1990, the Queensland Property Law Act Amendment Act 1990 (No. 54) introduced the ‘Form 16A Enduring Power of Attorney’. This Form 16A allowed for persons (the ‘donor’ or ‘principal’) to appoint someone (the ‘attorney’) to act on their behalf. The power of the attorney, however, was limited to acting only in financial matters, enabling the attorney to deal with money and other property owned by the principal in any way that the principal themselves could.

Current Legislation – Form 2 Enduring Power of Attorney

The Powers of Attorney Act 1998 (Qld) has since been introduced and allows for principals to give their attorneys power to act on their behalf in a wider range of areas. In addition to financial matters, the new legislation and approved forms allows for attorneys to also act in personal and health matters. These two areas give the attorney(s) power to make more decisions, such as:

  • Where the principal lives;
  • Day-to-day issues (e.g. what the principal shall wear, what they will eat etc);
  • Whether the principal undertakes education or training; and
  • Decisions on certain health care matters (e.g. withdrawing consent to an operation or medication).

Importantly, decisions in personal and health matters can only be made by an attorney in circumstances where the principal has lost the capacity to decide.  The power to make decisions in financial matters can be allowed sooner, if the principal provides for this in the document.  When choosing their attorneys, the principal may decide to appoint different persons to act for personal and health matters to the persons appointed to act for financial matters.  There are many factors for a principal to consider when preparing an EPOA, and seeking legal help can materially assist in addressing these significant considerations.

It is important to note that any EPOA prepared before 1998 using the old Form 16A will continue to only cover financial matters. Those who have prepared a pre-1998 EPOA and would like to broaden the scope of the powers of their attorney must revoke their current document and prepare a new EPOA.

If you would like to create an Enduring Power of Attorney or have your current one reviewed

Please call our Business Development Team on (07) 3252 0011 to arrange for an appointment with one of our Brisbane Estate Lawyers.