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Enduring powers of attorney forms

04 October 2019

I wrote some months ago (LawTalk 907, June 2017) about the forms of enduring powers of attorney, related certificates, and plethora of other material in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008.

I considered, and still do, that the prescribed enduring powers of attorney forms are poorly set out and are far too long – partly caused by the inclusion of superfluous material such as the provision of celebratory gifts.

Anecdotally, the forms and their implementation raise thoughts of civil disobedience in the most law abiding of solicitors.

More importantly, sections 94 and 94A of the Protection of Personal and Property Rights Act 1988 should be replaced.

There are many situations other than where people have appointed each other that there is less than a negligible risk of conflict of interest arising. A frequent situation is where an elderly spouse cannot appoint the other who is indisposed. The appointee, usually a middle-aged son or daughter, does not want to appoint their elderly parent. All parties are longstanding clients and well known to the practitioner.

A correction of the Act and simplification of the forms would gain the enduring gratitude of the legal profession and the paying public.

Errol Macdonald, Levin.

Geoff Adlam replies

The Property Law Section acknowledges the frustration being experienced by this and other practitioners who advise clients on EPAs and agree the default MSD forms are unduly lengthy and often overly complex for the needs of many clients. However, the additional information accords with the stated MSD goal that the new form “was to protect donors against attorney abuse and make both donors and attorneys more aware of their rights and obligations under an EPA”.

Ultimately, practitioners know their clients and what degree of prompting through use of the default form is required in a given situation. Although the EPA form provided by MSD is guaranteed to be compliant with the Act, there is fortunately some flexibility to adapt the form, provided it complies with the requirements of s 95(2) of the Act. Many sections of the new form are optional, although when contemplating changes to the form it is important to show that the donor has turned their mind to the option before rejecting it.

The conflict rule, although sometimes onerous to apply in practice, could more positively be seen as providing protection for the practitioner involved in executing the EPA. The Property Law Section does however sympathise with many of the writer’s concerns and will raise these with MSD when the opportunity presents itself.

Last updated on the 4th October 2019