7 May 2006
Changes to Enduring Power of Attorney
Changes to the Enduring Powers of Attorney legislation under Part 9
of the Protection of Personal and Property Rights Amendment Bill
1. Granting, witnessing and witness certification of an EPA
Donor's signature to be witnessed by a person retained independently
of the attorney and who is:
- a lawyer
- specifically authorised officer of a trustee corporation
- a suitably qualified and registered legal executive
employed by a lawyer
- if the lawyer or trustee corporation officer is appointed
as attorney another lawyer, legal executive, trustee corporation officer
can act as an independent witness
2. Certificate of mental incapacity
A certificate from a relevant health practitioner qualified under the
HPCA Act 20031 to make an assessment of a donor's mental incapacity is
required to enable an attorney to make significant health and welfare
decisions for the donor under:
- EPAs as to personal care and welfare
- EPAs as to property where the EPA has not been activate
when set up
- no further certificates required where the mental
incapacity is likely to be indefinite
- certificates can be given for a limited period
where the donor is likely to recover their mental capacity
- attorney can act on minor personal care and
welfare matters if the attorney believes on reasonable grounds
that the donor lacks capacity
- cost of any medical examination reasonably required
for a certificate of mental incapacity is a debt recoverable
from the donor's property
3. Obligations of an attorney and requirement to consult with
donor and other persons
Attorneys will be expressly required to:
- act at all times in the best interests of the donor
- encourage the donor to exercise all existing competence
- consult with donors as far as practicable
- consult with the person(s) the donor has requested
in the EPA be consulted
- when requested, provide information to third parties
specified by the donor about the attorney's actions under the EPA
- have regard to any advance directives given by the
donor when mentally capable with one exception (Sect 98(4))
- keep records of financial transactions and supply these
on request to the person(s) specified by the donor and to any Court
appointed barrister or solicitor
- make it an offence punishable by a fine not exceeding
$1000 for an attorney not to keep financial records.
4. Family Court jurisdiction: revocation and review of an attorney's decisions
extend the list of people who can apply to the Court without leave, to include:
- a social worker, a medical practitioner
- a relative or an attorney of the donor
- a superintendent, a licensee
- a supervisor or other person in charge of a hospital, home or institution
- a welfare guardian, a trustee corporation
- an authorised elder abuse and neglect prevention service provider
5. Execution of will on behalf of a donor
allow the Court to authorise the attorney to execute a will on behalf of the
donor if the Court is satisfied that the donor lacks testamentary capacity
6. Disclaimer by attorney
make it mandatory for an attorney, acting for a donor who lacks mental
capacity but who does not want to continue in this role, to file a report
to the Court recommending that a welfare guardian or property manager
be appointed or giving reasons why this is not necessary
7. Suspension of attorney's power to act in a legal capacity for the donor
allow a donor who has regained mental capacity to suspend an attorney's
right to act under an activated EPA without revoking the EPA, unless:
- the donor is certified as mentally incapable at the time of
giving the notice or subsequently again becomes mentally incapable
- or the Court determines that the donor is mentally incapable
8. Power of attorney to benefit self or others
Section 107 to changed so that an attorney can only gift, recover expenses
or benefit themselves or others to the extent that the donor has specified
in their EPA or to the extent authorised by the Court except where:
- property is owned jointly and not as tenants in common by
an attorney and a donor living together and sharing their income as married
couple, civil union couple or in a de facto relationship.
- an attorney charges professional fees or disbursements as
an attorney who is a lawyer, accountant, or trustee corporation action
when undertaking professional work under EPAs
- for an attorney’s out of pocket expenses incurred as an
attorney except lost wages or remuneration unless this is provided for in the EPA
9. Protection for third parties dealing with attorney
- a person dealing with an attorney does not have to enquire
whether a donor or others have been consulted
- an EPA continues in force until an attorney receives notice that the EPA has been revoked
- an attorney's actions are valid where he/she acts in good faith before receiving
a notice for revocation or suspension of an EPA
- third parties can reply on a notice of non-revocation and non-suspension of an
EPA where an attorney is acting in good faith
- it is an offence punishable by a maximum fine of $5,000 for an attorney to give a
false certificate of non-revocation or non-suspension of an EPA
10. Transitional Considerations
When the amended Act takes effect any existing EPAs that have not been
activated are subject to:
- the requirements of certificate of mental incapacity
- the requirement to act in best interest and consult provisions
- the changes to Sect 107 relating to the power of an attorney to benefit
self and others detailed in paragraph 8 above
11. Review of effectiveness of amendments
Minister for Senior Citizens is required to review the effectiveness of the
amendments made by the Amendment Act five years after its commencement,
- consider whether any amendments are required or desirable
- report on the findings to the House no later than six years
after the commencement of the Amendment Act