Changes to Powers of Attorney

Changes to Powers of Attorney

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:

  • When two donors appoint each other as attorney, the witnessing requirements have been relaxed to allow the same lawyer to witness both donors’ signatures when there is only a negligible risk of a conflict of interest.

New certification requirements for donor’s witness

  • The solicitor witnessing the donor’s signature must certify that they believe on reasonable grounds that the donor understands the nature of the document, understands the potential risks and consequences and is not acting under undue pressure or duress.

No prescribed form for medical certificates of incapacity:

  • The medical practitioner’s certificate must still include the information set out in Regulation 5 of the Protection of Personal and Property Rights Regulations 2008.  The certificate must include the certifying health practitioner’s opinion as to whether:

           (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. 

  • The certificate must also include information about the certifying health practitioner’s qualifications and area of practice and the reasons for their opinion.

Revocation of Appointment:

  • While a donor is mentally capable, an EPA can be completely revoked by:

           (i)           giving notice in writing to the attorneys; or 

          (ii)          signing a new EPA and giving a copy to the attorneys. 

  • Notice of revocation can be given by a person other than the donor, including in the event that the donor has become mentally incapacitated.
  • It is now possible to revoke the appointment of one attorney by notice in writing without affecting the appointment of other attorneys, as long as the attorneys were not jointly appointed.

Duty of attorneys to consult:

  • An attorney must now consult with any other attorney who holds current authority to act under a Power of Attorney.

Standard explanations:

  • Plain English explanations of the EPA documents have been created to assist donors in understanding the documents.  Lawyers can provide these to donors in addition to discussing the Powers of Attorney with them.

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.