The importance of reviewing and keeping your Enduring Power of Attorney up to date

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The Form of Power of Attorney, which was introduced in 1990, enabled an attorney to only deal with money and other property owned by the principal in any way that the principal themselves could.

However, over the years attorney powers have changed and in 1998 the Powers of Attorney Act 1998 (Qld) introduced an Enduring Power of Attorney, which allows for attorneys to also act in personal and health matters.

If you have completed your Enduring Power of Attorney before 1998, you must consider updating your Enduring Power of Attorney to allow your attorney such wider powers. Also, when choosing your attorneys, you now have the option to appoint an attorney/s for financial matters and a different attorney for personal and health matters.

Apart from these legislative developments, recent case law has also had a significant impact on the approach to prepare Enduring Power of Attorney documents and Estate planning in general.

The question of whether an enduring financial attorney can make, revoke or confirm a superannuation binding death benefit nomination on behalf of a member, has long been debated. In a recent decision by the Supreme Court of Queensland, the Court provided guidance on this issue. In doing so, the Court evaluated the conflict of interests at play when acting financial attorneys are also recipients of the death benefit and highlighted that different considerations will apply, including different considerations surrounding conflict of interest, in deciding matters of this nature.

This decision demonstrates the need to carefully consider your individual circumstances when preparing an Enduring Power of Attorney. Complications may occur if attorneys are given too much power. Your circumstances may be of such a nature that it will be necessary to expressly authorise or restrict an Enduring Power of Attorney from creating, extending or varying an existing binding death benefit nomination. Also, the careful use and drafting of conflict clauses in Enduring Power of Attorney documents are crucial to ensure your wishes are respected.

At McColm Matsinger Lawyers we will gladly assist you in reviewing or updating your Enduring Power of Attorney. We also offer specialist advice if you consider making, renewing or extending a death benefit nomination for yourself or as an attorney on behalf of a member. Contact our Estate Planning team today.

The information in this document represents general information and should not be relied on for your specific circumstances. If you require legal advice and assistance on the matters contained or associated in this document you should contact MMLaw.

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Disclaimer

The content published in this Blog is in the form of academic papers and the opinions expressed herein are generalised. The information provided is for educational purposes, not specific legal advice.

The application of any principles referred to can alter from case to case and accordingly you should seek independent legal advice in respect of your individual circumstances.

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