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BACKGROUND |
1
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SETTING UP AN EPA |
5
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Forms |
5
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Further requirements |
5
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Witnessing |
6
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Certificates |
7
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EPA form – Care and welfare |
8
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Conditions of, and restrictions on, the attorney's powers to act |
8
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Appointment of a successor attorney |
9
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Person(s) the attorney must consult when acting and what matters must be consulted on |
9
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Persons to whom the attorney must give information on request, and the kind of information that |
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must be provided |
9
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Who can assess the mental incapacity of the donor in order to trigger the full effect of the EPA |
9
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Notes to the new EPA care and welfare form |
10
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EPA form – Property |
10
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Appointment of a successor attorney |
10
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If joint attorneys are appointed, must they act jointly or can they act severally? |
11
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Conditions and restrictions (financial or otherwise) on the attorney's power to act |
11
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Persons the attorney must consult when acting |
11
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Can the attorney execute a will for the donor? |
11
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Can the attorney benefit him or herself or others? (There are two statements) |
12
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Persons to whom information must be given if they request it |
13
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Whether assessment of mental capacity must be carried out by a specialist |
14
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Practical issues |
14
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Delegation |
15
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Attorney’s obligations |
17
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Current position |
17
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Changes made by Amendment Act |
17
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EPA as to property |
17
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Act in best interests |
17
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Duty to consult |
18
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Options in regard to advice |
18
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Mutual duty to consult personal care and welfare attorney |
18
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Consequences of not consulting |
19
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Consequences for persons dealing with attorney |
19
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Financially support personal care and welfare attorney |
19
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Keep financial records |
19
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Consequences of not complying with duty to keep financial records |
20
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Provide information on exercise of powers |
20
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Consequences of not complying with duty to provide information: |
20
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Duties on disclaimer |
21
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EPA for personal care and welfare |
21
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Act in best interests |
21
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Consider financial implications of decisions |
22
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Duty to consult |
22
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Options in regard to advice |
22
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Mutual duty to consult property attorney |
23
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Consequences of not consulting |
23
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Consequences for persons dealing with attorney |
23
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Regard for advance directives |
23
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Not to act on certain matters |
24
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Provide information on exercise of powers |
25
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Consequences of not complying with duty to provide information |
25
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Duties on disclaimer |
25
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WHEN CAN AN ATTORNEY ACT |
27
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Current position |
27
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Changes made by the Amendment Act |
27
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EPA in relation to property |
27
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When can an attorney act |
27
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Mentally incapable defined |
28
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Presumption of competence |
28
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Transitional matters |
28
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EPA in relation to personal care and welfare |
28
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When can attorney act |
28
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Significant matters |
29
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Other matters |
29
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When mental capacity is determined |
29
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Incapacity because of indefinite health condition |
29
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Incapacity because of temporary health condition |
30
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Mentally incapable defined |
30
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Presumption of competence |
31
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Transitional matters |
31
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Medical certification of mental incapacity by relevant health practitioner |
31
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Donor’s options as to assessment |
32
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Form of certificate |
32
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Cost of medical assessments and examinations |
32
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When an attorney under an EPA cannot act |
33
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Suspension of attorney’s power to act |
33
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Court may revoke appointment of attorney |
34
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Court to revoke attorney’s appointment |
34
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When EPA ceases to have effect |
34
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Position where successive attorneys |
34
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POWERS OF THE FAMILY COURT |
37
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COURT APPROVED WILLS |
41
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ATTORNEY’S POWER TO BENEFIT SELF OR OTHERS |
45
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Current position |
45
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Changes made by Amendment Act |
45
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General prohibition on acting to benefit of attorney or other person unless authorised by EPA |
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or court |
45
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TRANSITIONAL provisions and review |
47
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Transitional provisions |
47
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EPAs not yet in effect |
47
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EPAs in effect |
47
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Review of Amendment Act |
49
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GUIDELINES FOR COUNSEL FOR THE SUBJECT PERSON |
51
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