Proctor : October 2018
31 PROCTOR | October 2018 Master your career. Postgraduate Applied Law Programs with practical learning you can immediately apply to your work. Summer Intake starts 19 Nov 2018 Flexible online study options to fit around your life Enrol at collaw.edu.au/ALP2018 or call 1300 506 402 with Christine Smyth Notes 1 At . 2 At. 3 At ,. 4 At . 5 Ibid. 6 At . 7 Ibid. 8 At  citing McFadden v Public Trustee for Victoria (1981) 1 NSWLR 15 at 29-32; Re Application by Police Association of South Australia  SASC 299; (2008) 102 SASR 215. 9 Ibid 10 Discussed at length -. 11 At . 12 At . 13 These provisions were specifically referred to in the judgement. There are a numerous other statutory differences between the Queensland Powers of Attorney Act and that of other states and territories. 14 At . Similarly, there is no equivalent to our provision s66 – Act honestly and with reasonable diligence in NSW, the Australian Capital Territory (ACT) and the NT. 13 It may be that this distinguishing feature will have a limiting effect, to the extent that practitioners should have regard to the jurisdiction in which a power of attorney is executed in advising clients as to the impact of this decision on their estate plan. When in doubt as to the attorney’s ability to execute a nomination when there were questions as to it being a conflict transaction, her Honour identified that “an attorney could prospectively approach the court for directions, under s118”. 14 With that, the key aspects to be drawn from the decision are: • Certain: A Queensland enduring power of attorney can affirm an existing binding death benefit nomination. • Probable: An enduring power of attorney cannot make a new binding death benefit nomination in favour of themselves; an enduring power of attorney may be able to make a new binding death benefit nomination in favour of other dependents of the principal – but should, in that case, seek court guidance via an application for directions. • Limits: May not apply to EPOAs from other jurisdictions. What’s new in succession law Christine Smyth is Immediate Past President of Queensland Law Society, a QLS accredited specialist (succession law) and partner at Robbins Watson Solicitors. She is a member of the QLS Council Executive, QLS Council, QLS Specialist Accreditation Board, the Proctor Editorial Committee, STEP, and an associate member of the Tax Institute.