An Enduring Power of Attorney (EPA) is a document that allows one person (the Donor) to give authority to someone else (the Attorney) to act on their behalf. It is generally used in the event that the Donor has become mentally incapable.
There are two types of EPAs. The first gives the Attorney the authority to act on the Donor’s behalf with respect to property. This includes land, investments, bank accounts, utility accounts and all other possessions and debts of the Donor. The Attorney may be authorised to act on the Donor’s behalf immediately or only if the Donor becomes mentally incapable.
The second type of EPA relates to the Donor’s Personal Care and Welfare. This Attorney can make decisions with respect to the Donor’s personal care in the event the Donor no longer has the mental capacity to do so themselves. These decisions can include which home or hospital the Donor will be admitted into and, in the event the Donor requires care, what medical treatments the Donor should receive.
Sometimes a Donor questions who they have appointed as their Attorney. The Donor may decide to remove and replace their existing Attorneys. Similarly, an appointed Attorney may choose to vacate the role if they feel they can no longer act as required.
Under the Protection of Personal and Property Rights Act 1988 (PPPR Act) there are prescribed methods for cancelling or revoking an Enduring Power of Attorney.
Revoking the appointment of an Attorney while the Donor still has mental capacity is a relatively simple process, whereas revoking the appointment of an Attorney when the Donor no longer has capacity is much more complex.
Revocation while the Donor has mental capacity
In this situation, where the Donor still has mental capacity and wishes to remove an existing appointed Attorney, they may issue a Notice of Revocation to their Attorney. The notice informs the Attorney that they are no longer appointed. There is a prescribed form under the PPPR Act for this purpose. The granting of a new EPA does not automatically revoke a prior appointment so it is important that a Notice of Revocation is issued.
If an Attorney no longer wishes to act as an Attorney, they may issue a Notice of Disclaimer to the Donor at any time. The notice lets the Donor know that the attorney disclaims (vacates) their appointment. This is on the proviso that the Donor is mentally capable at the time the Attorney gives their Notice of Disclaimer.
Should a Notice of Disclaimer be received by the Donor, it will be the Donor’s responsibility to appoint a replacement Attorney.
Revocation after the Donor has Lost Mental Capacity
Under the provisions of the PPPR Act, where a Donor has already lost mental capacity, the process of revoking/disclaiming an existing Enduring Power of Attorney becomes considerably more complicated.
If a Donor has been certified as mentally incapable, the Donor cannot revoke the appointment of the Attorney.
If an Attorney no longer wishes to act as an Attorney, the Notice of Disclaimer must be filed in the Family Court, along with a report by the Attorney as to whether or not a welfare guardian and/or property manager is required to be appointed. A judge will then determine the next appropriate steps.
Conclusion
Changing an Attorney after a Donor has lost capacity is a stressful exercise, and one that can attract significant legal expenses and court fees.
However, by regularly reviewing who you have appointed provides certainty and peace of mind, and is far more cost effective.
Glenda Graham is a Partner in the Trusts & Estates Team at Norris Ward McKinnon. Email Glenda at: [email protected]
Alice Nunn is a Senior Solicitor in the Trusts & Estates Team at Norris Ward McKinnon. Email Alice at: [email protected]
Jonathon Russell is a Solicitor in the Trusts & Estates Team at Norris Ward McKinnon. Email Jonathon at [email protected]
