The Gazette 1996

GAZETTE

JULY 1996

Attorney has been revoked and a person, without knowledge of the revocation, deals with the Donee of the power, the transaction between them shall, in favour of that person, be as valid as if the power had then been in force. 4. Section 18 (4) provides that where the interest of a purchaser depends on whether a transaction j between the Donee of a power ! and another person was valid by virtue of sub-section (2) it shall be presumed in favour of the purchaser, unless the contrary is shown that that person did not at the material time know of the revocation of the power if either the transaction between that person and the Donee was completed within 12 months of the date on which the power came into operation, or, that person makes a statutory declaration, before or within three months after the completion of the purchase, that that person did not at the material time know of the revocation of the power. In this section "purchaser" means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who, for valuable consideration, acquires an interest in any property; and includes also an intending purchaser. Practitioners should be aware of the importance of having the statutory declaration referred to in sub-section (4) completed in due time so as to avail of the presumption created by sub-section (4).

jointly and severally, the appointment of substitute

Powers of Attorney Act, 1996

attorneys, whether personal care decisions are to be delegated to the attorney, and whether the attorney is to be remunerated, among other issues. The enduring power must be signed by the Donor before the onset of mental incapacity. Section 9 provides that if the | attorney has reason to believe that j the Donor is or is becoming mentally incapable, he or she shall as soon as possible make an application to the Court for the registration of the enduring power. The application is made to the registrar of wards of court. Practitioners will obviously be conscious of the importance of ensuring that the enduring power has been properly and fully completed, as otherwise it will not j be registered, and will therefore be of no effect after the onset of mental incapacity. j Section 6 provides that an enduring power may confer general authority on the attorney to act on the donor's behalf in relation to all or a specified part of the property and affairs of the donor and may also confer authority on the donor to make any specified "personal care decision" on the donor's behalf. A "personal care decision" in relation to a , donor includes a decision on, for example, where the donor should live. B. Powers of Attorney Generally Part III of the Act amends the law | relating to Powers of Attorney generally. Among the amendments are the following: 1. A power of attorney is not required to be made under seal. 2. A form is provided in the third

This Act, which is operative from 1 August 1996, has two main effects: A. Enduring Powers of Attorney The Act creates a new instrument called an Enduring Power of Attorney which is a Power of Attorney which contains a statement by the Donor that the Donor intends the Power to be effective during any subsequent mental incapacity of the Donor, and complies with the provisions of Section 5 and regulations made thereunder. These regulations have been made and should be carefully considered by practitioners. They provide, inter alia, for the form of an Enduring Power, which must be strictly followed. The form is in five parts; the first part, an explanatory memorandum; the second part, signed by the Donor; the third part, signed by the Attorney; the fourth part, signed by the Solicitor; and the fifth part, signed by a registered medical practitioner. In the part to be signed by the solicitor, he or she states that "after interviewing the Donor (and making any necessary enquiries) I am satisfied that (the Donor) understood the effect of creating the enduring power and I have no reason to believe that this document is being executed by the Donor as a result of fraud or undue pressure". The enduring power does not take effect until it is registered with the registrar of wards of court. Solicitors who are asked to prepare an enduring power will need to conduct a thorough interview of the Donor, in the course of which the solicitor will need to consider whether he or she will be able to sign the statement in the form of enduring power. It will also be necessary to explain the irrevocable nature and extent of the power, the question of who should be the attorney, and if more than one whether they should be appointed jointly, or

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5. Section 21 provides that a power of attorney may be proved by production of the

original instrument or of a copy which is certified by the Donor, by a solicitor, or a member firm of the stock exchange, to be a | true copy of the original or, where the instrument has been deposited in the central office of the High Court, by means of an j attested copy. Continued on page 212

schedule to the Act for a general power of attorney. 3. Section 18 (2) of the Act

provides that where a Power of

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