The Gazette 1996

GAZETTE

JULY 1996

Powers of Attorney

Act, 1996

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

jointly and severally, the

appointment of substitute

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

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

be registered, and will therefore be

of no effect after the onset of

mental incapacity.

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

schedule to the Act for a

general power of attorney.

3. Section 18 (2) of the Act

provides that where a Power of

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).

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

attested copy.

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