Trusts / Asset Planning

New Enduring Powers Of Attorney – What You Need To Know

In December 2016 amendments to the Protection of Personal and Property Rights Act 1998 (“PPPR Act”) were passed by Parliament. These amendments will come into force on 16 March 2017. Among the amendments that have been made are regulations to adopt new forms of the enduring powers of attorney (EPA). From 16 March 2017 these new forms will need to be used. If you have completed an EPA using the old forms but you and/or your attorney have not signed them before 16 March 2017, then these will need to be redone on a new form.

What difference will the new law make to EPAs?

  1. From 16 March 2017 if you and your partner appoint each other to be the attorneys under your respective EPAs, one lawyer can certify the documents for you so long as the lawyer is satisfied that in doing so it does not constitute more than a negligible risk of conflict. This will require the lawyer to assess, on a case-by-case basis, if it is appropriate for them to advise both of you on your EPAs. Sometimes the interests of you and your partner may not align; this would be particularly so if you have a blended family, that is, you both have children to other partners.

  1. There is no automatic revocation of an EPA. The new forms introduce an optional provision for you to revoke previous EPAs. However you must still give notice to your previous attorney of such revocation. If you have previously signed EPAs you will need to discuss this with your lawyer.

  1. The medical certificate to activate the EPA will no longer have to be in a prescribed form. The requirement is that the medical certificate must instead contain the prescribed information. In addition the form no longer makes provision for you to be able to nominate a particular medical practitioner to assess your incapacity.

  1. Attorneys will now be required to consult with any other EPA attorney appointed by you. Note that this does not mean the need to consult with a successor attorney whose appointment has not yet taken effect.

  1. You can now revoke an attorney's appointment without revoking the whole EPA if there is more than one attorney appointed or if the successor to any attorney has been appointed.

  1. However, lawyers are now required to meet much more stringent certification requirements. Lawyers will now be required to certify that you understand the nature of the document, the potential risks and consequences of the document and that you are not acting under undue pressure or duress. This is a far more onerous requirement on lawyers than what we currently have, which only requires the lawyer to certify that:

    1. he/she explained the effects and implications of the document; and

    2. has no reason to suspect that the donor was or may have been mentally incapable at the time the document was signed.

    These more stringent requirements will mean that your lawyer will need to spend more time with you prior to certifying the EPA.
  1. Whereas some aspects of the changes will provide clarity and will simplify the process in terms of signing EPAs, it is however likely that in some cases the process of signing an EPA will become more time consuming and therefore may be more costly.

  1. That said, the use of an EPA is a valuable tool for when you are unable to attend to your own affairs due to either illness or old age. Therefore entering into an EPA should be a crucial part of every person’s estate planning.


For more information or assistance please contact:

Alison Gilbert
Partner
Tel: +64 9 379 9350
DDI: +64 9 979 2253
Email: 

Samuel Ames
Senior Solicitor
Tel: +64 9 379 9350
DDI: +64 9 979 2183
Email: 

Polina Kozlova
Law Clerk
Tel: +64 9 379 9350
DDI: +64 9 979 2223
Email: 

DISCLAIMER

This information is intended to be general in nature.  You are strongly recommended to seek your own legal advice in relation to the matters dealt with here.


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