Enduring Power of Attorney - Changes Ahead - August 2008

Significant changes to the law relating to Enduring Powers of Attorney (EPOA) come into effect on 28 September 2008. The changes are all about protecting the person giving the Enduring Power of Attorney (known as the Donor).

An EPOA allows the attorney to handle the Donor's affairs if he or she becomes mentally incapable and does not have the capacity to make those decisions.

There are two types of Enduring Power of Attorney. The first is an EPOA for Property, which includes land and business, investments, bank accounts etc. The second type of EPOA relates to Personal Care and Welfare. The attorney can make decisions about the Donor's care and medical treatment.

Some of the major changes are:

• The people who can witness an EPOA are now limited to a lawyer, a trustee corporation employee and some legal executives. The signatures of the Donor and the attorney must be witnessed by separate people.
• Before an EPOA is signed the witness is required to explain the effects and implications and certify that they have no reason to suspect that the Donor is mentally incapable at the time he or she signs the EPOA.
• An attorney of an EPOA in relation to Property must only use the Donor's property for the best interests of the Donor.
• An attorney of an EPOA for Personal Care and Welfare must not act in a significant matter unless a health practitioner has certified the Donor mentally incapable. An example of a significant matter would be entering into residential care.
• The attorney must as far as practicable consult with the Donor and anyone else that the Donor wishes to be consulted.
• People involved in the care of the Donor, for example relatives, social workers, medical practitioners etc can apply to the Court for a review of any decision made by the attorney and the Court can revoke the appointment of the attorney if it decides that the attorney did not act in the best interests of the Donor. Up until now there has been little checking on the activities of attorneys.
• Attorneys are now prohibited from acting for their own benefit apart from in some limited situations.

These are just some of the major changes. For further information, see our website or contact either Tony Walker on 303 9916 or Sarah Edmondson on 303 9915.