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June 2017

Changes to Enduring Powers of Attorney

Law changes have come into effect with respect to Enduring Powers of Attorney (“EPOA/s”) under the Protection of Personal and Property Rights Act.

These new changes include:

  • New forms and layout;
  • New notes, information and option sections;
  • Less restrictive requirements for mutual appointments (such as where spouses wish to appoint each other);
  • Standard explanations regarding effects and implications of EPOAs;
  • Extended certification requirements for the donor’s witness (who must be a lawyer, legal executive or an officer of a trustee corporation);
  • Duty of an attorney to consult with other attorneys of the donor (but not with a successor attorney whose appointment has not taken effect); and
  • Medical certificates of incapacity are no longer in a prescribed form but must still contain the prescribed information.

This is a timely reminder of the importance of each of us having a current EPOA.

What is an EPOA?

It is an authority permitting a named person/s (“attorney/s”) to make decisions and sign documents on your behalf (as “donor”), particularly if you lose legal (mental) capacity. There are two forms of EPOA being for Property (for everything that has a monetary value such as your home and your bank accounts) and for Personal Care & Welfare (for non-monetary matters such as healthcare issues).

Why have an EPOA?

As medical science has progressed you are likely to live longer but there is also a greater risk of a diminishing of your ability to make decisions for yourself.

When should you make an EPOA?

Now. We recommend that all clients (but particularly those over 50 years of age) should have EPOAs just as they would have their own Will. If your health remains good the EPOA may never need to be used.

What if you don’t make an EPOA?

Without EPOAs, if your health deteriorates your family may be forced to apply to the Family Court for Orders to achieve the same result but at considerably greater cost.

What are the decisions I (as donor) need to make?

  • Who should be your Attorney? Friends or family? One or more?
  • Should there be substituted attorneys?
  • Who should be consulted?
  • Who should be informed of decisions?
  • Should there be any restrictions on the powers of the Attorney/s?
  • For the EPOA as to Property, should it apply from now or should it only apply if you become mentally incapable?

What is my next step?

Make an appointment to see us to discuss these matters in more detail.