What is a Power of Attorney?

A Power of Attorney is a document which you sign where you authorise someone else to take care of your affairs and do things on your behalf.  Your attorney effectively steps into your shoes and can make decisions and sign documents on your behalf.  Decisions your attorney makes are legally binding.

How is a Power of Attorney different to a Will?

A Power of Attorney is only valid while a person is alive and is of no use upon your death or incapacity.  After you die, your Will takes over.

What is an Enduring Power of Attorney?

There are two types of Powers of Attorney.  One is a general power of attorney (as discussed above) and the other is an “enduring” one.  A general power of attorney cannot be used after you lose capacity.  On the other hand, an enduring power of attorney keeps working even if you lose your capacity to make decisions.  A good example (or perhaps not so good) is if you had a car accident and ended up in a coma. If you had an enduring power of attorney, your attorneys could continue to sign documents and make decisions on your behalf while you couldn’t.  You might appoint someone under a general power of attorney if you are off on an overseas trip and would like to have someone to sign documents for you while you are away.

Can I appoint more than one attorney?

Yes, you can have more than one attorney make decisions on your behalf.  You can even choose how you would like your attorneys to reach their decisions.  If you have two attorneys, you can say that you want them to make joint decisions and both sign documents together or you can say that you want them to be able to make decisions on their own (either of them separately).  If you have three, you can even require a majority decision.

What happens if my attorney abuses the power that I give them?

You can revoke or cancel the power of attorney document while you still have capacity to make decisions.  If you have lost your capacity, then you can no longer revoke the document yourself.  A person who notices the abuse of power would need to contact a government agency called the Office of the Public Guardian (OPG) for assistance/advice, along with seeking legal advice from a solicitor (where appropriate).

OPG Website: http://www.publicguardian.qld.gov.au/

General and Enduring Powers of Attorney (various forms) are available here: https://publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive

Smoke Alarms – is your dwelling compliant?

This year, the Queensland laws on smoke alarms changed.  For existing dwellings (houses/units), as of 1 January 2017, when replacing a smoke alarm, it must be of the ‘photoelectric’ type (the ‘ionization’ type is no longer acceptable under the updated legislation – an easy way to spot these is by the radioactive sticker on them, as they rely on a radioactive material).  Smoke alarms manufactured more than 10 years ago must be replaced immediately, along with any smoke alarm which does not operate when tested.

These changes are part of a larger movement to phase in safer smoke alarms that are interconnected (meaning that triggering one will trigger all of the alarms to sound). The rules that apply differ depending on the situation, as set out below:

New Dwellings and Substantially (50%) Renovated Dwellings (starting 1 January 2017):

Smoke alarms must:
-          be of photoelectric type (as per Australian Standard 3786-2014);
-          not also contain an ionization sensor;
-          be hardwired to the mains power supply (with a secondary power source – battery);
-          be less than 10 years old;
-          operate when tested; and
-          be interconnected with every other smoke alarm (all trigger together).

Properties Transferred/Sold or Leased or Lease Renewed (from 1 January 2022):

Smoke alarms must:
-          be of photoelectric type (as per Australian Standard 3786-2014);
-          not also contain an ionization sensor;
-          be hardwired to the mains power supply (with a secondary power source – battery), although dwellings existing before 1 January 2017 can be hardwired or powered by a 10-year removable battery;
-          be less than 10 years old;
-          operate when tested; and
-          be interconnected with every other smoke alarm (all trigger together).

Existing Dwellings (starting 1 January 2027):

As per the requirements for Transferred Properties discussed above. Essentially once we get to 2027, all property owners must be on board with the new laws.  But for those property owners who substantially renovate or sell/lease/re-lease, they will be forced to be on board sooner.

Interconnectivity can be achieved by a wired or wireless method.

While our focus is on the legal requirements above, earlier adoption of the new measures (rather than waiting for 2022 or 2027 as applicable) is recommended/encouraged.

There are also specific requirements regarding where smoke alarms must be placed, both within the dwelling itself (i.e. which rooms/areas) and the placement of the smoke alarms within rooms (e.g. distances from ceiling corners, light fittings, air-conditioners and fans, etc). 

For more information, refer to this Information Sheet: https://www.qfes.qld.gov.au/community-safety/smokealarms/Documents/New-Smoke-Alarm-Legislation.pdf

or the Queensland Fire and Emergency Services website: https://www.qfes.qld.gov.au/community-safety/smokealarms/
or talk to a professional appropriate to your needs (e.g. property manager, solicitor, electrician, etc).

Be safe and ensure you are compliant today!!! J

Why don't more Australians have a Will?

According to the key findings of a joint publication by UQ, Victoria University and QUT, approximately 40% of adult Australians have not made a Will.*  While this figure isn’t too bad when compared internationally, it is likely that of the 60% of adults who have made Wills, many of those will be out-of-date and in need of changes/updates.  Some may even have been automatically revoked by the act of getting married!

Making a Will can be one of the most important actions you can take to protect your assets and make sure that they pass according to your wishes.  Making sure you have a Will and that it is up-to-date can help reduce stress for your loved ones and reduce the costs involved with administering your estate.  Getting good quality advice on your Will can also help to limit the possibility your wishes will be disputed.  

Despite the importance of having a Will, it appears that excuse making and procrastination is the norm.  Some typical excuses/reasons given for not having a Will include:

-          “I’m too busy and don’t have time.”

-          “All my assets will go to my spouse anyway.”

-          “It’ll be too expensive.”

-          “I don’t have much, so I don’t need a Will.”

If you do not have a valid Will when you die, your assets will be dealt with according to the laws of intestacy (the laws which apply when you have no Will).  This can involve more cost and delay in administering your estate, but also means you have no say over how your assets are distributed.

So, in short, please do yourself and your loved ones a favour in 2017, and make a Will (or update your old out-of-date one)!  In my experience, people always find it less painful than they initially anticipate.

All the very best for a great 2017!!!

*UQ, Victoria University and QUT, ‘Having the last word? Will Making and Contestation in Australia’ (March 2015).