An Enduring Power of Attorney (EPA) enables your family to manage your affairs if you are not able to do so. Recently changes were made to the law governing EPAs to achieve a better balance between protecting the person giving the power (the donor) and making EPAs more accessible to everyone. The changes were also designed to make the process of establishing an EPA more easily understandable. As a result, there are now prescribed forms for Enduring Powers of Attorney.
It is important to note, however, that EPAs which were signed before the new legislation came into force are still valid. Unless you wish to vary your existing EPAs, there is no need to change to the new documents.
The new amendments (to the Protection of Personal and Property Rights Act 1988) make the following changes:
Less restrictive requirements for mutual appointments:
New certification requirements for donor’s witness
No prescribed form for medical certificates of incapacity:
(a) the donor is competent to manage his or her own affairs in relation to property;
(b) the donor has the capacity to:
(i) understand the nature of decisions made in relation to his or her personal care and welfare:
(ii) foresee the consequences of decisions on matters relating to personal care and welfare or the failure to make such decisions; and
(iii) communicate decisions about matters relating to personal care and welfare.
Revocation of Appointment:
(i) giving notice in writing to the attorneys; or
(ii) signing a new EPA and giving a copy to the attorneys.
Duty of attorneys to consult:
If you do not have EPAs it can be difficult for your family to manage your affairs if you cannot. If you become incapacitated without an EPA in place, an application must be made to the Family Court before anyone can assist you in managing your affairs. This is a time consuming and expensive process and you have no control over whom the Court appoints to make decisions on your behalf.
We recommend that EPAs are reviewed from time to time to ensure that they reflect your current wishes. We also recommend that if you are an attorney and you have concerns about the mental capacity of the donor, that you seek advice as to whether it would be prudent to obtain a medical certificate. If you have any questions or would like advice about your Powers of Attorney or your appointment as an attorney, please contact us.