Guardianship reforms commenced on 30 November 2020

Important changes to Queensland’s guardianship system came into effect on 30 November 2020.

Some of the changes are:-

• New forms and explanatory guides
• New capacity assessment guidelines
• Changes to the general principles and health care principles
• Clarity on applying the presumption of capacity
• Clarity about the capacity to make an enduring document
• Conflict transactions
• Broader remedies for breaches
• Increases to other safeguards (including protection for whistleblowers, changes to the Public Guardian’s powers and for community visitors)
• Further eligibility requirements for attorneys
• A limit to the number of joint attorneys
• Appointing administrators for missing adults
• Recognizing interstate and New Zealand enduring powers of attorney

New EPOA and AHD forms have been made which replace the previous forms which were in place for more than 16 years.
The new forms should be used now, however the old forms which are properly executed are still legal, binding and in force. There is no need to redo the old forms purely because of the legislative form changes. The only time you need to change to the new form will be when your appointments change.

Clarity about capacity to make enduring documents.
The reforms further clarify the capacity required for an adult to make an enduring document. Enduring documents (EPoA and AHD appointments) provide significant powers to third parties and therefore it is very important that adults understand the legal and practical effect of making such documents and does so freely without pressure from anyone else.
The reforms clarify that the adult must both understand the nature and effect of the document and be capable of making it freely and voluntarily.

Increases to safeguards.
The reforms also broaden the protection available to whistleblowers who disclose confidential information about an adult with impaired capacity. The protection extends to a person who believes, on reasonable grounds, the information shows, and adult has been subject to abuse, neglect or exploitation.

To recap, the new forms should be used now when making new appointments, however the old forms which are properly executed are still legal, binding and in force. There is no need to redo the old forms purely because of the legislative form changes. The only time you need to change to the new form will be when your appointments change.

 

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