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.

Grounds for objection to the

registration include the following

(S. 10.3):

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.):

1. That the donor is likely to remain

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EPA has been revoked or is no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

resides or be involved in its

management or operation.

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

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