Our Wills, Probate & Estate Planning Team advise many clients in relation to Enduring Powers of Attorney.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney ("EPA") is a legal document appointing a person or persons (attorney) to act on behalf of another person (donor) to manage their affairs in the event that they lose mental capacity through illness or injury.
The Attorney is usually a family member or close friend or someone the donor trusts implicitly to step into their shoes and manage their financial affairs and care decisions.
What is the difference between a Power of Attorney and an Enduring Power of Attorney?
Many people confuse a Power of Attorney with an Enduring Power of Attorney.
Creating a Power of Attorney allows you to appoint someone to manage your affairs on your behalf. You may require one because you are leaving the country for a period, or you may be about to undergo lengthy medical treatment or have mobility problems and want someone else to look after day-to-day bills, banking arrangements and such like on your behalf. A power of attorney only has legal standing for as long as the Donor has the mental capacity to make his or her own decisions.
Powers of Attorney Act 1996
Any EPA made before 26 April 2023 was made under the provisions of the Powers of Attorney Act 1996. An EPA made under the 1996 Act only came into effect once the Donor lost capacity. An application to register or “activate” the EPA was and is still made to the Wards of Court Office.
Notice of the intention to register is served on the Donor and the Notice Parties appointed by the Donor in the EPA. The Donor and the notice parties have 5 weeks to object to the registration of the EPA – generally on the grounds that the Donor has capacity. After the 5 week period has elapsed, the EPA, grounding affidavit, application for registration, various affidavits of service and a doctor’s report containing specified required information are lodged with the Wards of Court Office. If the Registrar is satisfied that all paperwork is in order a certificate of registration will issue. It is only when this certificate issues that the attorney or attorneys can act in the Donors name.
Assisted Decision-Making (Capacity) Act 2015
Since 26 April 2023, the legislative provision that governs the making of new EPA’s is the Assisted Decision-Making (Capacity) Act 2015.
The application to make an EPA is made through the Decision Support Service Office (“DSS”) online portal. Alternatively, a paper application can be made if the donor does not have access to a computer or is prevented from using the online portal due to disability. The donor and the attorney(s) to be appointed by the donor must establish their identity and verify their identity with the DSS. The DSS advises that doing so using MyGov ID is the quickest way to establish and verify identity.
Once the identity of the donor and the attorneys has been established and verified the DSS will send the draft forms to be completed by the donor, the attorneys, the solicitor for the donor and the medical practitioner of the donor. The donor and the attorneys must complete the documentation in the presence of each other and in the presence of two witnesses, all being present at the same time.
Notice of the execution of the EPA must be served on the adult children of the donor and this includes stepchildren. Once the EPA has been signed by all parties, including the legal practitioner and the medical practitioner, the EPA must be registered with the DSS within 3 months of completion.
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