Nomination of Notice Parties
A person named as attorney cannot be a notice party. A notice party shall be:
(i) The spouse, if living with the donor, or
(ii) If clause (i) does not apply, a child of the donor. or
(iii) If clauses (i) and (ii) do not apply, a relative (if any) of the donor.
“Relative” means a parent, brother or sister, grandchild, widow or widower of a child of the donor, or a nephew or niece of the donor.
Please Note: If the spouse of the donor is named as an attorney the next category of relative, by priority, should be named as notice party.
Some sections of the Act have been amended to include civil partners as notice parties or attorneys by Section 104 of the Civil Partnership and Certain Rights and Obligation of Cohabitants Act 2010.
What if some or all of the relatives are not contactable?
The first schedule of the 1996 Act provides information on how to proceed when a persons whereabouts cannot be ‘reasonably ascertained’.
What if the practitioner, having taken instruction from the donor, has a valid reason for not wanting to put the relative(s) on notice of the application?
If registration is needed, the solicitor might (as a last resort), seek a court order allowing registration notwithstanding the choice of "incorrect" notice parties. A Notice of Motion must be issued seeking the following reliefs:
- An order under section 10 (5) (b) of the 1996 Act allowing registration notwithstanding the fact that the requirements of S.I. 196 of 1996 were not complied with.
- An order under Section 4 (2) of the First Schedule of the Powers of Attorney Act 1996 directing that, in the circumstances of the case, it would be undesirable or impracticable to notify a person who is otherwise entitled be notified or that no useful purpose is likely to be served by giving such notice.
Attorneys being named as Notice Parties
A notice party cannot be an attorney. Errors occur with the interpretation of the Explanatory Memorandum Part A Regulation 7 of S.I. 196 of 1996, where the attorney (who is the donor’s spouse) is also named as a notice party or it is interpreted that a spouse must be a notice party and therefore cannot be named as an attorney.
If a notice party is nominated as a substitute attorney and also notice parties the Wards of Court Office will seek an affidavit from the notice parties/substitute attorneys confirming that they are aware of the “dual” appointment and undertake not to act now or in the future as attorneys.
Failure to Appoint Spouse as Notice Party or Attorney
It the spouse of the donor is neither named as attorney nor as notice party the Wards of Court Office will require the donor’s spouse to be served with a Notice of Intention to apply for Registration as well as Notice of Application (Form No. 1).
Signing of Parts B, C, D and E of the EPA.
The donor should be the first person to sign the EPA. All other parties should sign on the same day or as soon as possible thereafter. In some cases, the medical practitioner who signs Part E does so prior to the donor signing Part B of the EPA. The wording of Part E "...at the time this document was executed....” clearly indicates that Part E is to be signed after the donor has executed Part B of the EPA. If there is any doubt as to the donor’s capacity, it is prudent to consult a doctor prior to execution, but that doctor must sign Part E either on the day of or very soon after the donor executes Part B.
If Part E predates Part B, the Wards of Court Office will require a further certificate from the medical practitioner certifying that the donor had the capacity to understand the effect of creating the power on the date of execution. If the doctor is no longer available or indeed feels unable to give the required certificate. This will necessitate an application to the court under section 10 (5) (b) of the 1996 Act, by notice of motion and grounding affidavit.
Part B Omission of Important Statements
If one of the following statements is omitted from Part B:
- The words confirming appointment of Attorney "to act as attorney[s] for the purpose of Part II of the Powers of Attorney Act 1996"
- "I intend this power to be effective during any subsequent mental incapacity of mine"
- "I have read or have had read to me the information in paragraphs 1 to 13 of Part A of this document"
All the above are examples of important averments which must be included in an EPA. Omitting any of these will mean that registration without an order of court under Section 10 (5) (b) is impossible.
Parts C, D and E Omissions or Errors
By virtue of Section 10 (5) (a) where an omission in the instrument is not material, that instrument can be registered without referral to court. Firstly, this means that if the Instrument, consisting of Parts A to E, conforms substantially with the S.I. 196 of 1996, it is acceptable.
Omissions in Part C (signed by the attorney(s)), Part D (signed by a solicitor), or Part E (signed by a medical practitioner) can in most cases be corrected or explained in an affidavit by the attorney, solicitor or doctor as required without need for a court application.
If the averment that the Attorney ‘is not a minor or otherwise disqualified from acting as attorney’ is omitted, an affidavit with the correct averment inserted will be accepted.
Drafting errors in the clause "I have no reason to believe that this document is being executed by the donor as a result of fraud or undue pressure" can be explained by affidavit.
Part E is occasionally signed prior to Part B and this can be corrected by a further certificate from the doctor as to the capacity on the date of creation of the EPA.
Amendments to the Instrument
The Wards of Court Office often sees changes inserted into the text of an EPA, whether in Part B or elsewhere, and we would urge solicitors to be extra careful before making such changes.
Any material change, whether handwritten or in different "type", should at least be initialled by the donor and solicitor witnessing the donor’s signature. If there is any material change the Wards of Court Office will want to make sure it was done on or before execution by the donor.
Where sections of Part B are deleted it is important to ensure averments (e.g. "I intend this power to be effective during any subsequent mental incapacity of mine") have not been crossed out inadvertently. As stated above such an error will necessitate a court application under Section 10 (5) (b) of the Powers of Attorney Act 1996.
Appointment of Attorneys, Extent of Authority and Assets under their Control
Attorneys can be appointed either ‘jointly or jointly and severally’. If it is not clear which is intended, then their appointment is deemed to be joint. If the two choices "jointly/jointly and severally" appear side by side and neither is deleted or crossed out then the appointed is deemed to be joint, whether or not that was the intention of the donor.
If it is intended that the attorney(s) will have general authority to act on behalf of the donor and that the attorney(s) will have authority over all the donor's property and affairs then, to ensure that there is no difficulty at any time in the future, that the appointment should contain the following:
(a) a valid appointment i.e. " ...appoint .... to act as attorney[s] for the purpose of Part II of the Powers of Attorney Act 1996"
(b) the extent of the authority i.e. "with general authority to act on my behalf:"
(c) the assets i.e. "in relation to all my property and affairs"
If (a) is omitted, there is a question over the validity of the appointment and a court application under Section 10 (5) (b) is needed.
If Part II is referred to as Part 11 an affidavit explaining the drafting error is accepted. If (b) is does not refer to ‘general authority’ and that intention is clear from the EPA an affidavit explaining the drafting error is accepted.
Occasionally (c) is omitted and it is open to an affected party, e.g. a bank or prospective purchaser, to query whether it was the intention that all assets, property and affairs are included in the EPA.
The Wards of Court Office receives EPAs with pre-printed options relating to the authority and/or assets of the donor with neither option deleted (e.g. "in relation to all my property and affairs/the following property and affairs". Practitioners when drafting an EPA must consider whether there is any potential for ambiguity in the appointment of the attorney, the extent of his authority or the assets over which he will have authority.
In looking at omissions or errors, the Wards of Court Office needs to be satisfied that the instrument is a valid EPA. Interpretation of the terms inserted in Part B setting out the extent (and limits) of the attorneys’ powers is not a function of the Wards of Court Office. If directions or an authoritative decision on the meaning of those words is needed, an application is to be made to the court by of motion and affidavit. See Section 12 of the 1996 Act.
Property and Affairs or Personal Care Decisions only
S.I. 196 of 1996 sets out the two prescribed forms of EPA. The First Schedule sets out the prescribed form for “Property and Affairs” EPAs and the Second Schedule has the prescribed form for “Personal Care” only EPAs.
EPAs executed using the Personal Care form, where in fact the donor had wished to include property and affairs will require an application to court for an order that the instrument be read as if the words “with general authority to act on my behalf in relation of all my property and affairs” had been included.
EPAs that include both property and affairs and personal care decisions giving an attorney “general authority to act” do not include the power to make personal care decisions.
Section 6 (6) of the 1996 Act says that an EPA may also confer authority on an attorney to make any specified personal care decisions(s).
Section (4) sets out the seven personal care decisions that can be included in an EPA. It is possible that a general phrase such as “I authorise my attorney to make personal care decisions on my behalf” could be challenged. Care should be taken not to attempt to confer authority on the attorney to make medical decisions as this is not possible under the 1996 Act.