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What happens if your Enduring Power of Attorney loses capacity? An Enduring Power of Attorney (EPOA) is a legal document that allows someone (the principal) to appoint another person (the attorney) to make decisions on their behalf, particularly in financial and legal matters, even if the principal loses mental capacity. However, if the appointed attorney also loses capacity, there are typically provisions in the EPOA or relevant laws that address this situation. The specific procedures and consequences can vary depending on the jurisdiction and the language used in the EPOA document, so it’s important to consult local laws or seek legal advice for precise information. In many cases, there may be alternative attorneys named in the document, and they may step in if the primary attorney becomes incapacitated. If there are no alternate attorneys designated, the court may need to get involved in appointing a replacement attorney or take other appropriate actions. Specifically in Queensland, section 22 of the Powers of Attorney Act 1998 provides that if an attorney becomes a person who has impaired capacity, the power of attorney is revoked to the extent it gives power to the attorney. It’s crucial to carefully draft an Enduring Power of Attorney with the assistance of legal professionals to ensure that potential scenarios, including the incapacity of the attorney, are adequately addressed in the document. Additionally, regular reviews and updates of the document may be necessary to reflect any changes in circumstances or preferences. For advice in relation to powers of attorney, contact Jessica Murray at jessicam@qbmlaw.com.au

Artificial Intelligence is being increasingly used by clients attempting to reduce their reliance on lawyers, and in some cases by lawyers themselves in legal research.  In a US decision of Mata v Avianca Inc (2023), submissions were prepared using Chat GPT, citing a number of court decisions, and these submissions were provided to the court.  Unfortunately, a number of the decisions supplied by Chat GPT in support of the submissions – and quoted in the submissions – did not exist. This experience is to some extent consistent with our observations when reviewing material created by third parties utilising Artificial Intelligence.  To some extent, a reader is lulled into a false sense of security as the material is quite often very well written, however it can have critical errors – such as a reliance on a statutory provision which no longer exists.  The circumstances of Mata v Avianca Inc [2023] are a timely caution that when it comes to the use of Artificial Intelligence to prepare documents, one cannot be confident that the content is accurate or the sources quoted are current or exist.  If your preference is for documents to be created by a human – and correctly – please contact our commercial and property team, Peter Muller at peterm@qbmlaw.com.au Jessica Murray at jessicam@qbmlaw.com.au or Megan Sarroff at Megans@qbmlaw.com.au  

An application for the termination of a residential tenancy has failed because – even though the Notice to Leave was properly given and gave more time than was required for the tenant to leave – QCAT found that the last day to leave (stated in the Notice to fall on a Saturday) was extended until the following Monday. In the decision of Adjudicator Alan Walsh in Coastlink Property Services Pty Ltd v Chapman & Anor [2023] QCAT 452, Adjudicator Walsh considered the timing issues associated with the giving of notices to leave.  The effect of his decision (which follows previous QCAT authority) is that: Adjudicator Walsh pointed out that there was no warning about this in the forms.  The lesson to be learned from this matter is that – with Notices to Leave and notices generally – one must be very careful of the ramifications if the time for compliance falls on a weekend, public holiday, or other Excluded Day. For advice in relation to property and commercial matters, contact our property lawyers, Peter Muller at peterm@qbmlaw.com.au Jessica Murray at jessicam@qbmlaw.com.au or Megan Sarroff at Megans@qbmlaw.com.au  

Expansions to the Unfair Contracts provisions of the Australian Consumer Law come into effect on 9 November 2023. These provisions substantially widen the application of the legislation to “standard form” contracts, whether with consumers or businesses where one party to the contract is a business that employs less than 100 people (subject to adjustment for part time employees), or has a turnover in the previous year less than $10M. Importantly, there are now penalties for unfair contract terms, which will be a significant deterrent from their use. If you use standard forms of contract, it should be checked for compliance. For advice in relation to these matters, contact Peter Muller or Megan Hanneman on 5574 0111.