The Gazette 1996

GAZETTE

JULY 1996

6. The execution requirements of an EPA. 7. A statement by a solicitor in the prescribed format that he is satisfied the donor understood the effect of the EPA. 8. A statement by a medical practitioner in the prescribed format, that in his opinion, the donor had the mental capacity at the time of execution to understand the effect of creating an EPA. Notice of Execution of EPA: Under the Regulations, the donor is obliged to notify at least two persons of the execution of the EPA. They must be named in the EPA and include one of the donor's relatives j among whom a spouse and children have priority. The prescribed form of notice is contained in the Third j Schedule of the Regulations. Registration: An EPA shall not come into force until it has been registered (S.7). If an attorney under an EPA has reason to believe that the donor is or is becoming mentally incapable, the attorney must apply to have the EPA registered in the i Wards of Court office (S.9). | A notice (in the form provided in the Fourth Schedule to the Regulations) I of the Attorney's application to register the EPA must be served on the donor and also on the persons who were notified of the execution of the EPA and are named in it. Any person j served with this notice can object to | the registration by sending the grounds for objecting to the Wards of I Court Office within five weeks of the date the notice was given. i Grounds for objection to the registration include the following (S. 10.3): I 1. That the EPA was not valid or is no longer valid. | 2. That the donor is not or is not becoming mentally incapable. 3. That, having regard to all the circumstances, the attorney is unsuitable to be the donor's attorney.

4. That fraud or undue pressure was used to induce the donor to create the power. After registration of the EPA, the Court may, on the application of the attorney or any interested party, give directions regarding the duties and obligations of the attorney (S. 12). | The Court may also cancel the ' registration of an EPA for any good and sufficient reason including the ! following (S. 12.4.): i 1. That the donor is likely to remain Í mentally capable. | 2. Because of fraud or undue pressure on the donor. Protection of Third Parties: I The Act also contains protections for third parties who enter into transactions with the attorney after the EPA has been revoked or is no longer in force. The following protections are provided for third parties: | 1. An attorney of an EPA acting under the power when it has been revoked, cancelled or was not a valid Power of Attorney, shall not incur any liability if he had no knowledge of the revocation, the cancellation or the invalidity of the power (S. 13.2.). 2. Where the EPA has been revoked, cancelled or become invalid and the attorney deals with a third party who is unaware of the revocation, cancellation or invalidity, the transaction between them is valid (S.13.3.). 3. S.13.4 provides that there is a presumption of validity of the EPA where a purchaser from the attorney did not know of any revocation, cancellation or invalidity and (a) the transaction was completed within 12 months of the execution of the Power; or (b) the purchaser makes a declaration before or within three months after the completion of the purchase that

he or she had no reason at the time of the transaction to doubt that the attorney had authority to dispose of the property which was the subject of the transaction.

|

Very similar protections are also given to third parties who enter into j transactions with the attorney under a general Power of Attorney (S. 18). Who may be Attorney: Section 5.4 provides that an attorney ; under an EPA may be an individidual j or a Trust Corporation (as defined in i Section 30 of the Succession Act, 1965). An individual must be over eighteen and (a) Has not been adjudicated bankrupt, or; (b) Has not been convicted of an offence involving fraud or dishonesty or an offence against the personal property of the donor, or; (c) Is not disqualified under the Companies Act, or; (d) Must not be the owner of a nursing home where the donor Section 5.7 provides that an EPA in favour of a spouse, shall cease to be in force, if there is a subsequent legal separation between the spouses or certain other matrimonial proceedings between them. Under Section 14, a donor may also appoint more than one person to be an attorney and may specify that the attorneys are appointed to act either jointly or jointly and severally. Legislation Repealed: In relation to general Powers of Attorney, the Act repeals Sections 46, 47 and 48 of the Conveyancing Act, 1881 and Sections 8 and 9 of the Conveyancing Act, 1882. Sections 8 and 9 gave certain protections to resides or be involved in its management or operation.

198