Some of Queensland’s most vulnerable will be better protected after important amendments to the State’s guardianship laws were passed today.
Attorney-General and Minister for Justice Yvette D’Ath said the Guardianship and Administration and Other Legislation Amendment Bill 2018 will improve the clarity and efficiency of the guardianship system and safeguard the rights of Queenslanders with impaired capacity.
“Issues of guardianship will affect most of us in some form or another during our lives, particularly with our ageing population,” Mrs D’Ath said.
“I am sure many people have a relative or friend who may struggle to make their own decisions because they have a cognitive impairment, such as dementia, an acquired brain injury, an intellectual disability or a mental illness.
“Queensland’s guardianship system provides a scheme for individuals to be appointed to make personal, health and financial decisions on behalf of adults who no longer have the capacity to make decisions about certain matters themselves.
“It also provides a scheme for adults to plan ahead and appoint people to make personal, health and financial decisions and give directions about their future health care. It is important for all of us to plan for our future in a way that documents and preserves our own wishes and preferences for our future care and needs.”
Mrs D’Ath said the amendments supported a number of actions of the age friendly community action plan launched by the Palaszczuk Government in 2016, and a number of recommendations made by the Queensland Law Reform Commission from its review of the State’s guardianship laws.
Key changes to the current guardianship legislation include:
- strengthening the eligibility requirements for an attorney under an enduring power of attorney;
- clarifying the capacity needed for an adult to execute an enduring power of attorney or advanced health directive;
- strengthening the prohibition on attorneys and administrators entering into conflict transactions;
- broadening the protection available to whistle-blowers who disclose confidential information about conduct they believe could involve abuse, neglect and exploitation of an adult with impaired capacity;
- enabling the Queensland Civil and Administrative Tribunal (QCAT) to appoint an administrator for a missing person where QCAT is satisfied that the person is a missing person and that without an appointment the person’s financial interests will be significantly adversely affected; and
- giving greater power to QCAT to order an attorney who fails to comply with their obligations to pay compensation and to appoint an administrator for a missing person.
Mrs D’Ath said one of the most significant changes relates to the issue of ademption.
“The new laws will provide for a statutory exception to ademption so that when an attorney or administrator deals with property that is a gift under a will, the beneficiary will be entitled to the same interest in any surplus money or other property arising from the sale or other dealings with that property,” she said.
Mrs D’Ath said the bill also requires the preparation of guidelines to assist in the assessments of capacity.
These guidelines will be progressed alongside other reforms being carried out by the Department of Justice and Attorney-General, including the review of advance health directive and enduring powers of attorney forms and the preparation of explanatory guides to assist Queenslanders to engage in advance planning.
Attorney-General and Minister for Justice
The Honourable Yvette D'Ath