Enduring Power of Attorney's Explained
An Enduring Power of Attorney (‘EPA’) is a legal arrangement governed by the Protection of Personal and Property Rights Act 1988 whereby one person (‘the donor’) authorises another person (‘the attorney’) to act on their behalf. An EPA can, depending on the donor’s wishes, either grant the attorney wide general rights or rights limited by conditions and restrictions imposed by the donor.
EPAs have in recent years become subject to much tighter controls, with stringent mandatory requirements imposed by The Protection of Personal and Property Rights Amendment Act 2007 (‘the Act’), which came into effect on 26 September 2008.
The two types of EPAs are:
EPA in relation to personal care and welfare – a donor may authorise their attorney to act in relation to the donor’s personal care and welfare either generally or in relation to specific matters. These include matters such as medical treatment and selection/admission of the donor into residential care or a rest home.
EPA in relation to property – a donor may authorise their attorney to act in matters concerning the whole or a specified part of the donor’s property. Unless restricted, this EPA can be used for any ‘property’ of the donor, including borrowing, operation of bank accounts, and almost all financial or property decisions the donor could otherwise make personally.
An EPA for property can be immediately effective and continue when the donor no longer has mental capacity, or can become effective only upon the donor’s mental incapacity. However, for a personal care and welfare EPA, an attorney cannot act unless the attorney believes on reasonable grounds that the donor is mentally incapable. For more significant matters, certification of mental incapacity from a relevant health practitioner or determination by a court is also required before an attorney is able to act. In any event, there is an automatic presumption that the donor is mentally capable until the contrary is proven.
Key Requirements for EPAs
Witnesses - a lawyer, registered legal executive or an offi cer of a trustee corporation independent of the attorney must explain the effects and implications of the EPA to the donor to ensure he or she fully understands the scope of authority being ceded to their attorney, provide certifications that this has occurred, and witness the donor’s signature.
The attorney’s signature cannot be witnessed by the same person and so a separate independent witness is required. This can be another practitioner from Turner Hopkins.
Consultation – changes under the Act also provide a donor with the ability to require their attorney to reasonably consult with or provide information to certain people named in an EPA before a decision is made. Despite such discussions, however, the ultimate decision will be at the attorney’s discretion. When a business goes into liquidation, the assets of the business are realised to repay as much of the debt as possible. Where there are competing creditors, the order in which they receive their share of any proceeds is determined by their ‘priority’.
While the Act endeavours to provide donors with greater control over the powers they yield to their attorneys, the ultimate decision making will rest with the attorney. It is therefore critical for a donor to carefully consider who may be a suitable attorney.
If you are considering an EPA, please contact Raechel Pedrotti from our office who will be able to discuss what powers are given to your attorney, and be able to prepare an EPA to best suit your circumstances.
“I can't speak highly enough of Jenny. She got everything done in a timely manner and when my ex-husband threw a spanner in the works at the eleventh hour she got the required documentation to his lawyers and settlement back on track.”
“John is very easy to talk to, he never makes you feel dumb, and never makes you feel like you are wasting his time for asking questions. He explains everything very clearly, every time. John's support staff are also very efficient and so easy to deal with. No detail is missed when dealing with them. My husband and I are fans of them all :)”
“I have used Turner Hopkins for my legal services for over eight years. I have always found their level of service excellent and their work to a very high standard. I have used various lawyers at their firm for various businesses I have been involved with and have always had very positive experiences. I would highly recommend them.”
“To Michael Robinson – I wanted to thank you and your colleagues for many years of excellent service to the Bank. You have an outstanding business that has proved to be one of the most reliable and ethical businesses that Collections have dealt with in the almost 9 years I was with the Bank.”
“I have struggled with different legal firms over the years, but over the past few years I have engaged with Turner Hopkins with various requirements from personal relating to wills, family trust, property settlements and contracts through to commercial engagements including employment advice, commercial lease agreements and general legal advice. I have engaged with a number of the people in the firm and always found them professional, punctual in their responses and very sound in the advice provided.”