What if I made my Enduring Power of Attorney prior to 1 June 1998?

I made my Enduring Power of Attorney prior to 1 June 1998

What if I made my Enduring Power of Attorney prior to 1 June 1998?

If you made your Enduring Power of Attorney prior to 1 June 1998 using a Form 16A (pursuant to the Property Law Act 1974-1990), then we strongly recommend that you review and revise this document.

A Power of Attorney executed before 1 June 1998 and which uses a Form 16A, limits the power of your attorney(s) to financial and property matters only. At the time the Property Law Act 1974-1990 did not allow you to appoint an attorney(s) to make decisions on your behalf about personal/health matters.

This would mean that if you have executed a Form 16A Enduring Power of Attorney and lose capacity, no one will have the power to make decisions about your personal/health matters. Decisions about your personal/health matters can include:

  • your living arrangements;
  • your employment and education;
  • your day-to-day arrangements including your diet and dress;
  • consenting or withholding consent to an operation; and
  • consenting or withholding consent to life-sustaining medical treatment.

In the unfortunate event that you lose capacity and have not appointed an attorney(s) to make personal/health decisions on your behalf, then your family members will need to apply to the Queensland Civil and Administrative Tribunal (‘QCAT’) to be appointed as your Guardian.

Applying to QCAT to be formally appointed as your Guardian can be a lengthy and complex process for your family at an already difficult time, particularly if there is a conflict between your family members. If this is the case, or if QCAT has concerns about your family making personal/health decisions for you, then they may appoint another person they consider appropriate. This could include the Public Guardian which is an independent statutory office.

As for your health matters, if you have not appointed an attorney(s) who can make health decisions on your behalf, then the law prescribes who can act as your statutory health attorney in the interim.

By law, your statutory health attorney would be the first person listed below who would be appropriate to act and descends in the order of priority:

  • your spouse or your de facto partner provided your relationship is close and continuing;
  • a person who is responsible for your care provided they are over the age of 18 years and are not your paid carer.

In the circumstances, a paid carer is someone such as your nurse. It does not include a person who is looking after you and receiving a carer’s pension or similar benefit.

  • a person who is your close friend or relative provided they are over the age of 18 years and are not your paid carer.

Given the significance of your personal/health matters, you must ensure the person(s) you would like to have the power to act on your behalf if you are not in a position to make these decisions yourself.

If you would like to appoint an attorney(s) to have the power to make personal/health decisions for you, then you will need to make a new Enduring Power of Attorney and potentially revoke your existing document.

Similarly, if your circumstances or the circumstances of your attorney(s) have changed, irrespective of when you made your Enduring Power of Attorney, then we recommend you consider reviewing and revising your Enduring Power of Attorney.

If you would like to discuss these matters further or would like to update your Enduring Power of Attorney, please contact our office to arrange an appointment with our Wills and Estate Solicitor, Elise Jaques. 

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