Activating Post-2015 Act

Table of Contents

Application to Activate

On application of any interested party before registration, the court may, if it has reason to believe that the donor lacks capacity, exercise powers which would become exercisable on the registration of the instrument creating the power of attorney. It may do so whether or not the attorney has made an application to the Director for registration.

Where an attorney has reason to believe the donor lacks capacity in relation to one or more relevant decisions, the subject of an enduring power, he shall, as soon as practicable, make an application to the Director to register the instrument. Notice in the prescribed form shall be given to the

donor;
spouses, partner, civil partner and cohabitants;
children over 18;
decision-making assistant; co-decision-maker; decision-making representative; designated healthcare representative;
any other attorney appointed;
any other person specified by the donor above.

The attorney may, before making an application to register the instrument, apply to the court to determine any matter concerning its validity.

Steps Pending Activation

Where an application has been made to register an instrument, then pending determination of the application, the attorneys may take action under the power to maintain the donor or prevent loss of his assets, to the extent permitted by the power to make a relevant decision which cannot reasonably be deferred until the application has been determined, or maintain the attorney or other persons in so far as is permitted by the power.

Following taking the above steps, the attorney must report to the Director as to action he has taken, reasons why it could not be deferred, measures taken to encourage the donor to participate in the action and the outcome of the action.

Consideration of Application

On receipt of an application, the Director is to review the application and consider objections made from parties who have been given notice. He is to carry out reasonable enquiries as he considers necessary in order to establish whether the following criteria are met:

the enduring power is in accordance with the legislation;
the attorney is a suitable person;
the attorney is eligible for appointment;
notice has been made as required;
the application has been duty made.

Registration

Where he is satisfied that the application is in order, he shall register the enduring power. Where after reviewing the application, he is not satisfied that the application is in order, he shall notify the attorney and the donor and invite response. Upon reviewing response, he may confirm the decision or register the instrument, if he is satisfied.

Following registration of an instrument, the Director shall send an authenticated copy of the instrument to the attorney and the donor. An authenticated copy of the instrument shall be evidence of its contents and the date of its registration.

The Director shall maintain a register of enduring powers of attorney. It should be made available to such classes of persons who may be prescribed by regulations, and who satisfy the Director that he or she has a legitimate interest in inspecting the Register. The Director may issue authenticated copies of the enduring power, or part of it, on payment of a prescribed fee.

Appeal or Objection

Where an application for registration is refused, the attorney may within 21 days, appeal the refusal to court. The court may require the Director to register the instrument, affirm the decision of the Director, or make such other order or declaration as it considers appropriate.

Any of the persons above, or persons who appears to the Director to have sufficient interest or expertise in the welfare of the donor, may, no later than five weeks from the date notice is given, notify the Director as to his objections to registration.

An objection is to be made in a prescribed form and be accompanied by a prescribed fee. It may be made on specified grounds including that

the instrument is not duly created;
relevant notice requirements have not been complied with;
donor does not lack capacity;
fraud, coercion or undue influence was used to induce the donor to execute the instrument;
a false statement is included in the instrument;
that the attorney is not a suitable person under the above requirements.

The Director shall consider the objection and consult with the attorney and, where appropriate, the donor, and such other persons as he considers relevant. Where he considers the objection is not well founded, he shall notify the person concerned and give his reasons. Where he considers the objection is well founded, he shall make an application to court for a determination on the matter and for a determination as to whether the enduring power should be registered.

The court may on the application, require the Director to register the instrument or declare that it should not be registered, or make such other declaration or order as it considers appropriate.

A person who makes an objection may appeal the decision of the Director to register the instrument in court. Upon the appeal, the court may require removal of the instrument from the Register, affirm the decision of the Director, or make such other declaration as it considers appropriate.

Variation / Revocation

When an instrument is registered, it may not be revoked without court consent, confirming the revocation. The donor may not extend or restrict the scope of the authority conferred and no consent or instruction given by the donor after registration shall confer any right or impose any obligation or create any liability of the attorney or other persons having notice thereof. The above provisions apply for so long as the instrument is registered whether or not the donor for the time being lacks capacity.

An enduring power may be varied or revoked by the donor, where the instrument concerned has not yet been registered and where the donor has capacity to make it. The revocation or variation shall be in the form prescribed. It shall be signed by the donor and his signature shall be acknowledged by two witnesses. The provisions applicable to the creation of the power apply with necessary modifications.

The variation or revocation are to be accompanied by statements

by the donor, that he understands the implication of the variation or revocation;
by a legal practitioner, confirming he is satisfied that donor understands the variation or revocation and has no reason to believe that the variation or revocation, is a result of fraud, coercion or undue pressure;
by a registered medical practitioner giving an opinion as to the capacity of the donor;
by such other healthcare professional as shall be prescribed as to his or her opinion, as to the capacity of the donor;
by the attorney, that he or she is aware of the variation and revocation and undertakes to act accordingly.

After an instrument is registered, the donor may revoke it provided he or she has capacity to do so. However, the revocation is not valid unless the application is made to the court and the court is satisfied that the donor has done what is necessary to effect revocation and had capacity at the time of purported revocation so to do and has given the attorney notice of revocation.

An attorney may disclaim the power of attorney, where the instrument has not yet been registered by giving notice to the donor. Where the instrument has been registered, it may be disclaimed only with the consent of court.

Accounts and Records

An attorney under a power of attorney must within three months of registration, submit to the Director a schedule of the donor’s assets and liabilities and projected statement of his income and expenditure.

The donee is to keep proper accounts and financial records of the donor’s income and expenditure. He shall submit the accounts and records to the Director and make available for inspection by the Director or any special visitor, such accounts and records.

The attorney shall, within 12 months after registration, and thereafter annually, submit a report to the Director as to the performance of his functions as attorney during the relevant period. The report is to be in a form prescribed and include particulars of costs, expenses and remuneration paid or claimed in the relevant period. A donor who has restrained the donor must include particulars in the report.

Non-Compliance by Attorney

Where the attorney fails to submit a report, the Director shall notify the attorney of the failure and give him such period as may be specified to comply. Where the attorney fails to comply with the notification, then unless the report is submitted amended or rectified to the satisfaction of the Director, the Director shall make an application to court for determination as to whether the attorney shall continue as such.

There are provisions for complaints in relation to attorney. A person may make a complaint to the Director concerning one or more of the following:

that the attorney has acted, is acting, or proposes to act outside the scope of his functions and powers under the instrument;
that the attorney is not a suitable person within the meaning of the legislation;
that fraud, coercion or undue pressure was used to induce the donor to appoint the person as attorney.

A complaint may also be made in relation to the exercise of powers under the previous 1996 legislation.

Complaint & Court

Following a receipt of the complaint, the Director shall carry out an investigation and consider whether it is well founded. If it is not well founded, he shall notify the person concerned of the complaint who may appeal to court.

If it is well founded, he shall make an application to court for determination in relation to the subject matter of the complaint. The complainant may appeal to court within 21 days, where the Director does not uphold the complaint.

The court may determine any of the above matters. It may determine that the person shall no longer continue as a donor under the 2015 Act or 1996 Act.

Court Criteria Registration

When the Director makes an application for determination whether an enduring power of attorney shall be registered, the court may, notwithstanding that the instrument does not comply with the statutory requirements, or the application is

noncompliant, register the instrument, where it is satisfied that
the donor intended the power to be effective during the period when he lacked capacity;
fraud, coercion or undue pressure was not used to induce the donor to appoint the attorney;
the attorney is a suitable within the meaning of legislation to be the attorney, and
it is desirable in the interests of justice to register the enduring power.

In determining suitability in the above context, the court, may take account of the

relationship and connection between the donor and attorney,
the degree of involvement which would be required on the part of the attorney in the care of the donor,
the willingness of the attorney to carry out the functions under the power, and any conflict of interest that may arise.

Post- Registration Court Issues

Where an instrument has been registered, the court may, on application of the donor, the attorney, the Director or an interested party,

determine any question as to the meaning or effect of the power,
give directions in respect of any relevant decision relating to personal welfare of the donor,
give directions regarding the management and disposal by the attorney of the property and affairs of the donor,
give directions regarding the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision in an enduring power, including directions for the repayment of excessive, or payment of additional remuneration.

Where the court consents to a disclaimer of the power by an attorney, it shall notify the Director. The Director shall remove the instrument from the Register of enduring powers of attorney, where it has been disclaimed or where the attorney appointed becomes disqualified.

Where more than an attorney appointed under an enduring power or where the donor has specified a person who will act in substitution, if the appointed attorney dies or is unable to act or is disqualified, then the Director shall note on the Register concerned, the revocation or disqualification, as the case may be.

Regulation

The Minister may make regulations prescribing

the form of instrument creating an enduring power;
the form of notices required;
the class of healthcare professionals who may certify their opinions as to capacity;
the form of application;
the form of notice of application;
the form of report to be submitted;
the form of registration of an instrument creating the power;
the form of variation and revocation;
the bodies and classes of persons who may inspect the Register;