Most people are aware of the need to organise their affairs so that, in the event of their death, their estate will be distributed according to their wishes. This of course entails the drafting and signing of a legal Will. However, many people do not "get around" to having this important matter attended to. The making of one's Will is a matter that should be considered by all persons over the age of 18.

Should a person die without having made a valid Will, that person is said to have died "intestate". Such a person's estate is then distributed according to the rules of intestacy, which rules frequently do not accord with what the person would have wished. The desirability of being able to specify the manner in which ones estate is distributed needs no emphasis.

Even in the event that a valid Will is in existence, certain events may operate to affect the validity of the Will. For example, marriage will revoke the Will, unless made in contemplation of marriage. Therefore, the need to keep one's Will updated by amending the document as required is obvious.

Your solicitor can assist in the drafting and preparation of your Will and can provide advice in regard to estate planning. Most people will not require any more than a simple document to express their wishes, however, more complex documents can be drafted to accommodate people with large or complex estates.

Powers of Attorney and Advance Health Directives

The laws relating to Powers of Attorney were changed as at 1 July 1998 by the enactment and proclamation of The Powers of Attorney Act 1998. Not only did this Act alter the method and form of granting Powers of Attorney, but it also introduced the new concept of the Advance Health Directive which allows people to give directions about their future health care and medical treatment. Enduring Powers of Attorney and General Powers of Attorney already in existence prior to 1 July 1998 are not affected by the new Act. The types of Powers of Attorney and Advance Health Directives currently available, and the basic principals involved with each are as follows -


General Power of Attorney

A General Power of Attorney is granted to another person by executing a Form 1 General Power of Attorney. A General Power of Attorney will only allow the attorney to act for the donor in regard to financial matters and will only be valid while the donor is capable of understanding the nature and effect of decisions and able to communicate decisions in some way. Should the donor lose such capacity, the general power of attorney is automatically revoked. Should a person wish someone to act as their attorney immediately and continue to act as attorney even if the donor loses capacity, then an Enduring Power of Attorney should be used.


Enduring Power of Attorney

An Enduring Power of Attorney has certain benefits over and above that of a General Power of Attorney. An Enduring Power of Attorney will continue to be valid and effective even though the donor has become incapable of making decisions on their own behalf. Further, the Enduring Power of Attorney can be granted to give the attorney power to make decisions in regard to both financial and personal matters on the donor's behalf. Also, there are two forms of Enduring Power of Attorney, the "short form" which allows the donor to appoint the same attorney for both financial and personal matters, and the "long form" which allows the donor to appoint one attorney for personal matters and a different attorney for financial matters.

An Enduring Power of Attorney is granted by executing a Form 2 or Form 3 Enduring Power of Attorney.

The powers granted to the attorney or attorneys can be limited in regard to when they are to take effect and also in regard to the specific matters that they will apply to. The printed forms used will contain information and advice to both the Principal (the donor) and the attorney in regard to their rights and duties.


Advance Health Directive

An Advance Health Directive is a document that states a person's wishes or directions regarding their future health care for various medical conditions. These come into effect only if the donor is unable to make their own decisions. The Directive may be made to apply at any time when the donor is unable to decide for him or herself, or alternatively it may be made to apply only if the donor is terminally ill.

It is strongly recommended that any potential donor discuss the Advance Health Directive Form with their doctor before such form is completed. In addition, a doctor must complete Section 5 of the form. The document also contains provision for the granting of a Power of Attorney to specified people.

The purpose of an Advance Health Directive is to give the donor confidence that their wishes regarding health care will be carried out should they be in a position where they cannot speak for themselves. However, it should be noted that Advance Health Directives do not in any way allow the donor to make a request for euthanasia as this would be in breach of the Queensland Criminal Code.


Registration of Power of Attorney

Should an attorney be required to sign documents on behalf of the donor that relate to purchase or sale of land, or any other dealings with land that will require registration with the Department of Natural Resources (Titles Office), the Power of Attorney itself will need to be registered with that Department. Any documents signed under a Power of Attorney that has not been registered, will be rejected by the Department of Natural Resources if lodged for registration purposes. The cost of registering a Power of Attorney is currently $88 and is a simple process of lodging the Power of Attorney form along with a standard request to the Department to register same.


Revoking a Power of Attorney

To revoke (or cancel) a Power of Attorney is a simple matter of executing the appropriate form. The Power of Attorney is immediately revoked upon the signing of a Revocation Form by the donor and notifying the attorney.

It should be noted however that a General Power of Attorney will be revoked automatically should the donor lose capacity as discussed above, or dies. The Power of Attorney will also be revoked automatically if the attorney resigns or loses capacity or becomes bankrupt or insolvent.

Our commercial law team has expertise in all aspects of Estate Planning and Administration and will be pleased to discuss any aspect of the above matters. Please contact McLaughlins for an appointment.