Legal Insights

Enduring Powers of Attorney

Updated August 2018


There are two types of Enduring Powers of Attorney (commonly referred to as EPA’s).

Property: This covers assets, including money. The donor can choose to have this EPA take effect upon signing or choose for it not to take effect until the donor loses mental capacity. More than one attorney may be appointed.

Personal Care and Welfare: This covers health and decisions about living arrangements and associated care decisions. This EPA only comes into effect when the donor has been assessed by a medical professional as ‘mentally incapable’. There may be only one attorney for this EPA.

Amendments to the law relating to EPA’s came into effect on the 16 March 2017. The amendments include new forms together with a more ‘user friendly’ explanation of the effects and implications of entering into an EPA.

An EPA enables 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. A lot of care should be taken when choosing who is to become the attorney. It is crucial that the attorney is trustworthy and the donor needs to be confident that the attorney would make decisions similar to those that the donor would make for themselves if they were competent.

The Protection of Personal and Property Rights Act 1998 together with subsequent amendments and regulations has endeavoured to include adequate measures to ensure that the donor fully understands the implications of what they are signing.

The Act has enabled donors to have control over the powers they wish to give to their attorney and to have these powers monitored by other persons. There is now also a requirement for attorneys to consult with any other attorney of the donor.

The Enduring Power of Attorney forms have optional provisions that the donor may elect to include. 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 property form also includes a section in which people can set out how or if their attorney is allowed to benefit themselves.

The witnessing requirements of Enduring Powers of Attorney are stringent and there are only certain classes of persons authorized to act as a witness.

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. Although existing Enduring Powers of Attorney are still valid clients may wish to take advantage of the greater protection and options now included in the new forms 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.

Barbara McDonald, Legal Executive
Barbara McDonald, Legal Executive

Contact: Barbara McDonald

DDI: 09 837 5740