Activating Power Pre-2015 Act

Application to Register

Where there is reason to believe a donor of an enduring power has become or may be becoming mentally incapable, the court may authorise the person appointed as the attorney to take steps under the instrument even though it is not yet registered.

An enduring power of attorney becomes effective on registration by the Office of Wards of Court.  Mental incapacity means that the donor, the person who made the enduring power,  is unable to manage and administer his assets and affairs by reason of his mental condition.

The attorney must produce evidence of the donor’s incapacity.  A certificate signed by a medical practitioner may be accepted as evidence.  It is an offence to give a false statement in connection with registration.  It may be prosecuted summarily or on indictment with imprisonment of up to two years upon conviction in the latter case.

Notice to Register

Before making an application to register, notice must be given to the donor and to the Office of Wards of Court.  The court may dispense with the requirement for notice of the donor if it would be undesirable or impracticable and serve no useful purpose.

The notice of the application must also be given to the persons nominated for the purpose of receipt of such notice in the power. Up to three persons are entitled to receive notice.

Where that the person is dead or cannot be located, notice must be given to certain other persons specified.  These are close relations within certain categories, similar to those set out above who could have been nominated for such purpose by the donor.

An application can be made to the court to dispense with the requirements for notice where it should be undesirable, or impracticable or no useful purpose would be served.

The notice must be in a prescribed form that notifies the parties that the attorney proposes to make an application for registration of the power.  It informs the persons to whom notice is given that they may object to the registration, inviting them to do so if they believe appropriate, within five weeks from the date of the notice.

Registration

The application for registration is made by affidavit to the Registrar.  The affidavit must set out the full facts and circumstances justifying the application.  The requisite medical evidence and certificates must be furnished. The application must be served personally on the donor and others who would have been entitled to receive notice of an intention to apply for registration.

Generally, the Registrar is obliged to register the instrument.  In certain cases, registration may be postponed while enquiries are made into the circumstances.  This includes

• whether or not a valid notice of objection has been made by a third party who has been notified within five weeks.
• whether notice has been given to any parties other than the donor
• whether their enquiries might bring to light evidence of a basis of the objection

Where the above or other circumstances which merit a deferral apply, the court may adjourn the application until enquiries are been made and completed.  It may give directions in relation to enquiries.

An objection may be taken on the basis

• that the instrument is invalid
• that it has been revoked,
• that the donor is not or is not becoming mentally incapable.
• that the attorney is unsuitable
• that the power was induced by fraud or undue influence.

Pending the determination of the application, the attorney is entitled to maintain the donor and prevent the loss, maintain the attorney and other persons whom the donor might have been expected to provide for and make personal care decisions that cannot be reasonably deferred.  Third parties acting in reliance in his power are protected, notwithstanding that the power may not ultimately be registered.

Post-Registration

Once the instrument is registered, it is irrevocable by the donor.  The court must confirm any revocation.  The attorney cannot disclaim the position unless notice is given to the donor and the court’s consent is obtained. The terms of the power cannot be changed.

On registration, the Office of Wards of Court applies a certified copy of the power to the donor and persons on whom the relevant notice was served.

The Office of Wards of Court maintains a register of enduring powers.  This is open for inspection by the public.  The Office of Wards of Court must be notified of certain key changes, including

• changes of address,
• death
• resumption of mental capacity,
• death of attorney,
• other events invalidating or affecting the enduring power.

Court Determination

An application may be made to the court to determine any question regarding the effect of the instrument.  A direction may be given regarding certain aspects of the management of the donor’s affairs including

• management and disposal of property,
• rendering of accounts and production of records,
• remuneration and expenses,
• personal-care decisions.

The courts may require the attorney to produce documents and furnish information in his possession.  The court may authorise the attorney to do acts for his own benefit or those of other persons other than in accordance with the limited circumstances in which gifts are permissible.

The court may cancel a registration where it consents to disclaimer or revocation. The court may cancel when the donor is not likely to remain mentally incapable.  It may also cancel in certain other circumstances. There are circumstances where the power is automatically invalidated.

Third Parties

Third parties dealing with an attorney are protected notwithstanding that it might later be revoked or found invalid.  The protection does not apply if they knew the relevant grounds of invalidity.

There are protections for the attorney himself where he is acting in good faith in circumstances where the power of attorney has been revoked but he is not aware of the revocation or the grounds of revocation.  It is presumed that third parties dealing with the attorney were not aware of the invalidity.