New EPA Post-Registraion

Revocation and Variation

An enduring power of attorney that has been registered may be varied or revoked by the donor where the instrument creating the enduring power of attorney has not been the subject of a notification that has been accepted by the Director. A variation or revocation shall be done in such form as shall be specified by the Director.

A revocation or variation of an enduring power of attorney shall be signed by the donor and his or her signature shall be acknowledged by 2 witnesses and section 60(4) shall apply with the necessary modifications. A variation or revocation of an enduring power of attorney shall be accompanied by the following statements:

• by the donor, that he or she understands the implication of varying or revoking the enduring power, as the case may be;
• by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she— is satisfied that the donor understands the implication of varying or revoking, as the case may be, the enduring power, and has no reason to believe that the variation or revocation, as the case may be, is the result of fraud, coercion or undue pressure on the donor;
• by the attorney, in the case of a variation, that he or she is aware of the variation] and undertakes to act accordingly.

The donor shall, as soon as practicable after the revocation of an enduring power of attorney, give notice to the attorney, in the form specified by the Director, of the revocation.

A variation of an enduring power of attorney may be made—

• at any time after the expiry of 6 months from the date of the registration of the instrument creating the enduring power, and
• where more than one variation is made, at intervals of at least 12 months from the date of the previous variation,

unless an earlier variation or variation at more frequent intervals is agreed by the Director.

Donor Regains Capacity after Notification

The following persons:

• the donor;
• on the written request of the donor to act on his or her behalf, the attorney;
• on the written request of the donor to act on his or her behalf, any of the persons referred to ;
• on the written request of the donor to act on his or her behalf, any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor,

may, after the acceptance by the Director of a notification—

• request the Director to rescind his or her acceptance as a result of the donor having regained capacity, or
• request the Director to rescind his or her acceptance as a result of the donor having regained capacity and to recognise the revocation by the donor of the instrument creating the enduring power.

A request under as the case may be, shall be in the form specified by the Director and shall be accompanied by—

• a statement by the donor that he or she understands the implications of his or her request as the case may be,
• a statement by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she— is satisfied that the donor understands the implications of a request being made to the Director as the case may be, and  has no reason to believe that the request by the donor, or on his or her behalf, is the result of fraud, coercion or undue pressure on the donor,
• a statement by each of 2 persons, each being either a registered medical practitioner, or such other healthcare professional of a class as shall be prescribed by the Minister,that in his or her opinion the donor no longer lacks capacity in relation to the relevant decisions that are the subject of the enduring power,
• a statement by the attorney that he or she is aware of the request being made and undertakes to act accordingly, and
• in the case of a request above, a written notice of revocation by the donor of the instrument creating the enduring power of attorney in the form specified by the Director.

Consideration of Request & Decision

Where the Director receives a request above that is compliant, he or she shall—

• review the request,
• consult with the attorney,
• consult with the donor

The Director shall consult with such other persons as he or she considers relevant, and shall where he or she is of the view that the request is not well founded, notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view, and provide reasons for that view,

In the case of a request  where he or she is of the view that the request is well-founded

• notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view,
• rescind his or her acceptance of the notification, and
• modify the Register accordingly, or

in the case of a request where he or she is of the view that the request is well founded—

• notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view,
• rescind his or her acceptance of the notification,
• recognise the donor’s revocation of the instrument creating the enduring power, and
• modify the Register accordingly.

A person who receives a notificatio may, not later than 21 days after the date of issue of the notification by the Director appeal the notification concerned to the court.

Upon an appeal the court may—

• require the Director to accept the request, rescind his or her acceptance of the notification and make the appropriate modifications to the Register,
• in the case of a request require the Director to rescind his or her acceptance under of the, recognise the donor’s revocation of the enduring power of attorney and make the appropriate modifications to the Register,
• affirm the notification by the Director or
• make such other declaration or order as it considers appropriate.

Once the Director has accepted or has refused to accept a request as the case may be, the donor concerned, or, with his or her written consent, his or her attorney, or former attorney, as the case may be, shall, as soon as practicable, give notice to the persons referred of that acceptance or refusal, as the case may be, in the form specified by the Director.Where a request has been accepted by the Director, the enduring power of attorney shall be deemed to be a power of attorney that has been registered.

Resignation by attorney

An attorney—

• may resign from his or her role as attorney where the enduring power of attorney in which he or she has been appointed attorney has not been the subject of a notification that has been accepted by the Director, and
• shall notify the donor, the Director and any other attorney appointed under the enduring power of attorney concerned of his or her resignation as soon as may be after it is made.

Where there is more than one attorney appointed under an enduring power of attorney and one or more of them resigns, the instrument creating the enduring power of attorney may be the subject of a notification, and enter into force, in respect of the remaining attorney or attorneys, as the case may be, unless the enduring power expressly provides to the contrary.

Where an instrument creating an enduring power of attorney has been the subject of a notification that has been accepted by the Director, an attorney may resign from his or her role as attorney under the enduring power created by the instrument only with the consent of the court.

Reports by Attorney

An attorney under an enduring power of attorney which confers authority in relation to property and affairs shall, within 3 months  of a notification having been made that has been accepted by the Director in relation to the enduring power, submit to the Director a schedule of the donor’s assets and liabilities and a projected statement of the donor’s income and expenditure.

An attorney under an enduring power of attorney which confers authority in relation to property and affairs shall, after a notification has been made that has been accepted by the Director in relation to the enduring power, keep proper accounts and financial records in respect of the donor’s income and expenditure and shall—

• submit such accounts and records as part of a report to the Director under this section, and
• make available for inspection by the Director, by a general visitor or by a special visitor, at any reasonable time, such accounts and records.

An attorney shall, within 12 months after a notification has been made that has been accepted by the Director in relation to the enduring power, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such attorney during the relevant period.

Every report submitted to the Director shall be in such form as shall be specified by the Director and shall include details of all costs, expenses and remuneration paid to and claimed by the attorney in the relevant period together with such other matters as are specified.

Failure to Report

Where an attorney fails to submit a report in accordance with this section or submits an incomplete report or fails to comply with the above, the Director shall notify the attorney of that failure or incompleteness and give him or her such period of time as is specified in the notification to comply or submit a complete report.

Where an attorney fails to comply with a notification, the Director—

• may, in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and specifications made by him or her, accept the report as if it were in compliance with this section and the relevant specifications,
• may make such further directions with regard to the submission of the report in question as he or she considers appropriate, or
• may, following consultation with the donor (in so far as the Director considers it appropriate) and the attorney, make a determination that the attorney shall, as soon as may be or from a date specified by the Director, no longer act as attorney for the donor concerned.

Where the Director has made a determination, he or she shall notify the donor and the attorney of his or her determination, provide reasons for that determination and update the Register accordingly.

A donor or an attorney who has been notified of the Director’s determination may, not later than 21 days after the date of issue of the notification by the Director, appeal the determination concerned to the court.

Pursuant to an appeal to it, the court may—

• affirm the determination of the Director,
• declare that the attorney shall continue to act as such for the donor concerned and require the Director to update the Register accordingly or
• Make such other declarations or orders as appropriate.

Complaints in relation to Attorneys

A person may make a complaint in writing to the Director concerning one or more of the following matters:

• that an attorney has acted, is acting, or is proposing to act outside the scope of, or in breach of his or her functions as specified in the instrument creating the enduring power of attorney, or in breach of this Act;
• that an attorney is not a suitable person;
• that fraud, coercion or undue pressure was used to induce a donor to appoint an attorney, to vary or revoke an enduring power of attorney, to make a request or to make a request and written notice of revocation
• that the donor did not, at the time the enduring power of attorney was executed, have the capacity to make an enduring power of attorney;
• that the donor did not, at the time the enduring power of attorney was registered, ave the capacity to register an enduring power of attorney.

A person may, in respect of an attorney under the Act of 1996, make a complaint in writing to the Director concerning one or more of the following matters:

• that an attorney under the Act of 1996, is acting or is proposing to act outside the scope of the enduring power under the Act of 1996;
• that an attorney under the Act of 1996 is unable, for whatever reason, to perform his or her duties and obligations as construed in accordance with that Act;
• that fraud, coercion or undue pressure was used to induce a donor under the Act of 1996 to appoint an attorney under the Act of 1996.

Following the receipt of a complaint above, the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall,, form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her r.eceipt of the complaint

The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.The Director shall, as soon as is practicable after having formed a view above  where he or she is of the view that the complaint is well founded, and, in the case o a complaint notwithstanding section 12 of the Act of 1996 make an application to the court for a determination in relation to a matter specified in the complaint,  where he or she is of the view that the complaint is well founded and that

• the provision of clarification by him or her to the attorney regarding the role of the attorney would be an appropriate resolution, or
• the subject matter of the complaint could be appropriately resolved the Director may, not later than 3 months after having formed a view

provide the clarification referred to or proceed to resolve the complaint as soon as possible as the case may be, and          where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for that view.

A person who receives a notification may, not later than 3 months  after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.

The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation, to which this section shall, with any necessary modifications, apply

The Director may—

• request further information regarding the outcome of the clarification or resolution, as the case may be, or
• request confirmation that the complaint has been resolved,

from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate.

If the Director is not satisfied, following the receipt of the information or confirmation that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court or may take such other steps as he or she considers appropriate in order to resolve the complaint.

The court may—

•  pursuant to an application to it or
• pursuant to an appeal

make a determination in relation to a matter specified above or  and may, if it considers it appropriate, determine that—

• an attorney shall no longer act as such in relation to the donor concerned, and that the Register shall be amended accordingly or
• an attorney under the Act of 1996 shall no longer act as such in relation to a donor and that the registration of the instrument creating the enduring power under the Act of 1996 shall be cancelled

The Director shall,, investigate a complaint above unless in his or her opinion there has been undue delay in making the complaint. A decision by the Director  not to investigate a complaint—

• shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and
• may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.