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Barbara McDonald
Barbara McDonald

ARTICLE by Barbara McDonald, Registered Legal Executive
October 2008


Enduring Powers of Attorney for Personal Care and Welfare and/or Property enable a person (the donor) to appoint an attorney to look after their affairs on their behalf when they no longer have the mental capacity to do this for themselves.

However previously there have been concerns raised by Social Workers and Age Concern that there was misuse of enduring powers of attorney and that the donor did not have adequate protection from misuse. As a result a report was prepared by the Law Commission and from the 26th September 2008 The Protection of Personal and Property Rights Amendment Act 2007 came into effect.

The Act has endeavoured to include adequate measures to ensure that the donor fully understands the implications of what they are signing. The witnessing requirements of all new Enduring Powers of Attorney are more stringent and there are now only certain classes of persons authorized to act as a witness. The donor and attorney must now have different witnesses.

The Act has enabled donors to have greater control over the powers they wish to give to their attorney and to have these powers monitored by other persons. The new Enduring Power of Attorney forms have optional provisions that the donor may elect to include, some of interest:

The donor is now able to nominate the ‘relevant health practitioner’ who is required to certify as to a donor’s lack of mental capacity before an attorney may act for the donor;
There is provision to include other person(s) that the attorney must consult with when acting on matters as attorney on behalf of the donor;
There is also provision to include person(s) to whom the attorney must provide information relating to the use of the attorney’s powers if requested by the appointed person(s). 

The changes are a positive move and we recommend that our clients give careful consideration as to whether it would be prudent in their circumstances to appoint an attorney under the new Act. 

Although the existing Enduring Powers of Attorney are still valid clients may wish to take advantage of the greater protection offered under the new Act by executing fresh documents and revoking the earlier Powers of Attorney.

Planning for your future care must be put in place when you are healthy and well enough to make these decisions. We invite all clients to contact our property team for further information on this matter and to discuss their individual needs.