New EPA Requirements

Table of Contents

Enduring Powers of Attorney

A person who has attained the age of 18 may appoint another person who has also attained that age as “attorney” on whom he or she confers either or both of the following:

general authority to act on the donor’s behalf in relation to all or a specified part of the donor’s personal welfare or property and affairs, or both;
authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, or both;

This authority may, in either case, be conferred subject to conditions and restrictions.

The authority is an enduring power of attorney. It is conferred in writing. The instrument must be is in compliance with regulations and specifications made by the Director

A donor may, in an enduring power of attorney, appoint a substitute person n the event that an attorney on whom authority is conferred dies or is unable to act or is disqualified from acting as attorney, or resigns from his or her role as attorney.

An enduring power of attorney shall not enter into force until—

the instrument creating the enduring power of attorney has been registered,
the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power,
the Director of the Decision Support Service has been notified and accepts the notification.

Where an enduring power of attorney is expressed to confer general authority in respect of all or a specified part of the donor’s property and affairs, it operates to confer, subject to any restrictions provided in the power and the Act, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.

Where an enduring power of attorney confers authority in relation to the personal welfare of the donor, this shall not authorise the attorney to consent to or refuse treatment for the donor. A donor shall not, in an enduring power of attorney, purport to give a power to the attorney to consent to or refuse treatment for the donor and any provision of a power of attorney relating to such purported power shall be null and void.

A person is suitable for appointment as an attorney if he or she is able to perform the functions of attorney as specified in the enduring power of attorney.

Content- Statements

An instrument creating an enduring power of attorney shall include the following statements: A statement by the donor that he or she—

understands the implications of creating the power,
intends the power to be effective at any subsequent time when he or she lacks capacity in relation to one or more relevant decisions which are the subject of the power, and
is aware that he or she may vary or revoke the power prior to its registration, and
on or after its registration until the attorney notifies the Director that the donor lacks capacity and this notification has been accepted;

It must contain 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 creating the power,
is satisfied that the donor is aware that he or she may vary or revoke the power until it is accepted and
has no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure;

It must contain a statement by

a registered medical practitioner that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power, or
healthcare professional of a class that shall be prescribed, that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power;

It must contain a statement by the attorney, that he or she—

understands the implications of undertaking to be an attorney for the donor and has read and understands the information contained in the instrument,
understands and undertakes to act in accordance with his or her functions as specified in the instrument creating the enduring power of attorney,
understands and undertakes to act in accordance with the guiding principles,
understands and undertakes to comply with the reporting obligations, and
understands the requirements in relation to registration and in relation to notification of the Director when the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power.

Contents Particulars & Execution

An instrument creating an enduring power of attorney shall include the following:

the name, date of birth and contact details of the donor;
the signature of the donor and the date that he or she signed the power;
the name, date of birth and contact details of the attorney;
the signature of the attorney and the date that he or she signed the enduring power of attorney;
the signatures of the 2 witnesses referred to

An instrument creating an enduring power of attorney may be signed on behalf of the donor by a person who has attained the age of 18 years and who is not the attorney or a witness if

the donor is unable to sign the instrument,
the donor is present and directs that the instrument be signed on his or her behalf by that person, and
the signature of the person is witnessed in accordance with subsection (4)(b).

Execution

The donor, or the person signing on his or her behalf in and the attorney shall sign the instrument creating the enduring power of attorney in the presence of each other and in the presence of 2 witnesses—

each of whom has attained the age of 18 years,
of whom at least one is not an immediate family member of the donor or the attorney, and
neither of whom is an employee or agent of the attorney.

Each of the witnesses shall witness the signature of the donor (or the person signing on his or her behalf) and the signature of the attorney by applying his or her own signature to the instrument creating the enduring power of attorney.

Where a donor proposes to remunerate an attorney for performing his or her functions as attorney, the instrument creating the enduring power of attorney shall specify the proposed remuneration and the functions to which it relates.

An “immediate family member” means—

a spouse, civil partner, or cohabitant,
a child, son-in-law or daughter-in-law,
a parent, step-parent, mother-in-law or father-in-law,
a brother, sister, step-brother, step-sister, brother-in-law or sister-in- law,
a grandparent or grandchild,
an aunt or uncle, or
a nephew or niece.

Scope of Authority — Property and Affairs

An attorney may act under an enduring power of attorney relating to property and affairs for the attorney’s benefit or that of other persons to the extent provided for in the power, where specific provision to that effect is made in the power and subject to any conditions or restrictions contained in the power.

An attorney may not dispose of the property of the donor by way of gift unless specific provision to that effect is made in the enduring power of attorney.Where an enduring power of attorney authorises the disposal of the donor’s property by way of gift, the attorney’s power to make such gifts shall, in addition to being subject to any conditions or restrictions in the enduring power, be limited to—

gifts made on customary occasions to persons (including the attorney) who are related to or connected to the donor and in relation to whom the donor might be expected to make gifts, and
gifts to any charity to which the donor made or might be expected to make gifts,

provided that the value of the gift is reasonable having regard to all the circumstances and in particular the extent of the donor’s assets and any financial obligations.

Joint and Joint and Several Attorneys

A donor may, in an enduring power of attorney, appoint more than one attorney and may specify that the attorneys shall act—

jointly,
jointly and severally, or
jointly in respect of some matters and jointly and severally in respect of other matters,

In default of the power so specifying, the attorneys shall be deemed to have authority to act jointly.

Where 2 or more persons have authority to act jointly as attorneys, then, in the case of the death, lack of capacity or disqualification of any one or more of them, the remaining attorney or attorneys may continue to act, whether solely or jointly, as the case may be, unless the enduring power expressly provides to the contrary.

Persons Ineligible to be Attorneys

A person shall not be eligible for appointment as an attorney under an enduring power of attorney if he or she—

has been convicted of an offence in relation to the person or property of the person who intends to appoint an attorney, or the person or property of a child of that person,
has been the subject of a safety or barring order in relation to the person who intends to appoint an attorney, or a child of that person,
is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,
is a person subject to a Companies Act restriction or a disqualification order,
is a person who isthe owner or the registered provider of a designated centre or mental health facility in which the intending donor resides, or residing with, or an employee or agent of, such owner or registered provider,unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the intending donor, or
has been convicted of certain offence under the Act

The third, fourth and fifth grounds do not apply where it is proposed to confer authority only in relation to personal welfare matters.

Disqualification of Attorney

An attorney shall, with effect from the date on which an event specified below occurs or, at the expiry of the period referred to and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being an attorney for the donor where the attorney is the spouse of the donor and subsequently—

the marriage is annulled or dissolved either under the law of the State, or under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State,
a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect,
a written agreement to separate is entered into between the spouses, or
the spouses separate and cease to cohabit for a continuous period of 12 months.

Later Disqualification

Where, subsequent to the appointment of an attorney—

the attorney is convicted of an offence in relation to the person or property of the donor or the person or property of a child of the donor,
a safety or barring order is made against the attorney in relation to the donor or a child of the donor,
the attorney becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,
the attorney becomes a person is subject to Companies Act restrictons or disqualifications
the attorney becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act,
the attorney becomes— the owner or the registered provider of a designated centre or mental health facility in which the intending donor resides, or a person residing with, or an employee or agent of, a person referred to in sub paragraph (i),nless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the intending donor,
the attorney is convicted of certain offences under the Act
he attorney— enters into a decision-making assistance agreement as a relevant person,) enters into a co-decision-making agreement as a relevant person,) has executed as a donor an enduring power of attorney that has been the subject of a notification that has been accepted by the or has executed as a donor an enduring power under the Act of 1996 that has been registered under that Act,] or
the attorney is a trust corporation and the trust corporation is dissolved,

the attorney shall be disqualified from being an attorney for the donor with effect from the day on which the attorney falls within any of the aboves.

The third, fourth and fifth grounds do not apply to an attorney insofar as authority is conferred on him or her under the enduring power of attorney in relation to personal welfare matters.

Where an attorney becomes disqualified, he shall notify the Director of such disqualification and the particulars relating thereto.

(Where an attorney becomes disqualified, a relevant decision made solely by him or her after his or her disqualification shall be null and void. This does not operate to prevent a person who relied on a relevant decision referred to in that subsection from recovering damages in respect of any loss incurred by him or her as a result of that reliance.