Office of Wards of Court - Enduring powers of attorney
Office of Wards of Court
An enduring power of attorney is a power of attorney executed by a person (the donor) who is mentally capable and which is only intended to be brought into force if the donor becomes or is becoming mentally incapable. In this event the attorney appointed by the donor should apply for the registration of the enduring power of attorney so that he may act on behalf of the donor.
Is there a difference between a general power of attorney and an enduring power of attorney?
A general power of attorney confers upon the donee of the power acting within its terms authority to do on behalf of the donor anything which the donor can lawfully do by attorney. This power of attorney lapses if the donor loses mental capacity.
An enduring power of attorney however must contain a statement by the donor to the effect that the donor intends the power to be effective during any subsequent mental incapacity of the donor. It must be in the form prescribed in Statutory Instrument number 196 of 1996 and it does not come into force until it has been registered by the Registrar of Wards of Court.
How do I create an enduring power of attorney?
The actual instrument is required by law to include all the Parts specified in S.I. 196 of 1996.
As soon as practicable after execution the donor must give notice of execution to at least two persons. This is very important because, if an application for registration is subsequently made, these persons (known as notice parties) must be given notice of intention to apply for registration.
At least one of the notice parties must be the donor's spouse if living with the donor.
If the donor is unmarried widowed or separated notice must be given to a child of the donor if applicable or otherwise to any relative.
Following the creation of the enduring power of attorney and the giving of notice of execution the instrument should be kept safely until such time as the donor loses or is beginning to lose mental capacity. At that time application for registration should be made to the Registrar of Wards of Court.
When can the attorney exercise the powers conferred in the enduring power of attorney?
The powers conferred may be exercised once the Enduring Power of Attorney shall have been registered.
Prior to registration the attorney may take certain actions specified in section 7 (2) of the Powers of Attorney Act 1996.
Also prior to registration and in certain circumstances application may be made ex parte (that is without serving notice on anyone) to the court to exercise its powers under section 12 of the Act.
What powers does the Attorney have when the EPA has been registered?
The donor is required, when creating the enduring power of attorney, to specify what powers the attorney is to have. These powers may be very general or they may be subject to conditions or restrictions. The powers may be confined to the making of personal care decisions. The powers of the attorney are contained in Part B of the instrument.
Do I have to notify members of my family if I am making an enduring power of attorney?
You are required to give notice of execution of the enduring power of attorney to at least two persons one of whom must be your spouse if living with you. If you are unmarried widowed or separated one of your notice parties must be your child (if applicable) or any relative (that is parent, sibling, grandchild, widow/widower of child, nephew or niece).
These notice parties must be given Notice of Intention to apply for registration by the Attorney if that application is subsequently made.
How long does registration take?
There is a statutory requirement that the donor and notice parties be given five weeks from service upon them of the notice of intention to apply for registration to lodge notice of objection in the Office of Wards of Court. If that notice of objection is lodged, the Instrument will not be registered and the application will not be refused until such time as such inquiries as the court shall direct shall have taken place.
After the expiry of the five week period and if no notice of objection has been filed the time taken for registration can vary but it should be possible to have this done within one month. Delays sometimes arise due to the requirements for the lodgement of medical evidence and other proofs as specified in the legislation and the Rules of the Superior Courts.
Is there a cost involved in creating and registering an enduring power of attorney?
Costs will be incurred in this process and there will be fees payable for the medical reports. If there is an objection or if a court application is made, the costs will be greater. The role of the Office of Wards of Court is confined to registration of the instrument and therefore this office has no involvement with costs and it is not possible for any indication of the amount of the costs to be given in this page.
How is an objection made to the registration of an enduring power of attorney?
The donor and notice parties may within five weeks of the date of notice of intention to apply for registration lodge notice of objection in the Office of Wards of Court. Where this is done the Powers of Attorney Act stipulates that the court shall neither register the instrument nor refuse the application until it has made such inquiries (if any) as it thinks appropriate in the circumstances of the case.
The grounds for objection are set out in section 10(3) of the Act and are as follows:
(a) that the Power purported to have been created by the Instrument was not valid;
(b) that the Power created by the Instrument is no longer a valid and subsisting Power;
(c) that the Donor is not or is not becoming mentally incapable;
(d) that, having regard to all the circumstances, the Attorney is unsuitable to be the Donor's attorney;
(e) that fraud or undue pressure was used to induce the Donor to create the Power.
After registration of the enduring power of attorney does the attorney have to notify the court of transactions carried out on behalf of the donor?
Ordinarily, the attorney is not required to keep the court informed of his actions. However, once the enduring power of attorney has been registered, application may be made to the court by the donor, the attorney, or any other interested party for an order which can include directions with respect of the management or disposal by the attorney of the property and affairs of the donor; the rendering of accounts and production of records by the attorney.
When the attorney executes part C of the instrument he acknowledges his obligations including his obligation to keep adequate accounts in relation to the management and disposal of the donor's property for production to the High Court if required.
What happens if the donor recovers mental capacity?
If this occurs the donor may apply to the court under section 12(4)(C) for an order cancelling the registration of the instrument.
Is the donor taken into wardship when an enduring power of attorney is registered?
The donor is not taken into wardship by virtue of the registration of the enduring power of attorney. Wardship proceedings are completely different from an application to register an enduring power of attorney although both applications are made in respect of a person who has lost mental capacity.
It is hoped that the material contained in this page concerning enduring powers of attorney is helpful. If you require any further information or assistance you should obtain professional legal advice. The functions of the Office of Wards of Court are confined to registration of the instruments and the office has no role in respect of the creation of the Instruments.