Articles

Enduring Powers of Attorney

New Rules

New rules now apply to the granting, execution and witnessing of enduring powers of attorney. Essentially the legislation changes have been designed to increase the protection of donors.

Ruth Dyson as Minister for Senior Citizens noted that the thrust of the new legislation is to ensure "that the interests of the donor are paramount in all aspects of powers of attorney; and even where a donor loses capacity and the decision making role has passed to the attorney, the donor still has the right to be consulted."

Briefly the changes mean:

• The new forms are much longer and require more information from a donor and thorough examination of the donor's personal and financial situation.
• More detailed advice as to the effects and implications of granting the enduring power of attorney will be required to be given to a donor.
• In addition in some cases a donor will need to be advised by another solicitor.
• Only solicitors and registered legal executives can witness enduring powers of attorney.
• New certification procedures apply for witnesses and health practitioners certifying as to the loss of mental capacity.
• Consequently legal costs on completing enduring powers of attorney will increase.

There is no doubt that cases of misuse of enduring powers of attorney do occur. Unfortunately such misuse is more to do with the calibre of the person chosen by the donor to be their attorney than the content of the form appointing the attorney!

It remains to be seen whether the changes to the legislation will provide the protection to donors as intended.