New Enduring Power of Attorney forms
The new forms which we have been toiling with since mid-March, are not user friendly. They are unpopular with secretarial staff and practitioners.
They are far too long. Since EPAs were originally introduced they have ballooned out from one to 14 pages. They are very hard to plough through to get to the essential details to show clients. Clients are often quite elderly.
The requirement for the full addresses of signatories consumes a lot of space and is impractical. People can change address, possibly the day after signing.
The space allowed for sections B, D, C, F, H and J could be compressed and remove at least one page of blank paper.
The prescriptive detail required for section L will change a lot, as with wills, if the donor’s circumstances change or the donor wishes to alter the recipients of gifts or the amounts.
The forms are poorly set out.
In section N the witnesses’ signatures should be on the same page as the party signing as with most other legal documents.
All of this takes extra time to prepare and have signed, and the forms should be reformatted as soon as possible
The Ministry of Social Development was asked for a response to Mr Macdonald’s letter. Senior Solicitor Theresa Donnelly replied as follows:
The ministry has widely consulted throughout the development of these forms. We value the feedback we have already received from the profession and appreciate continuing feedback.
A goal of the revised forms was to provide additional information to donors and to help them make more informed decisions about the implications of entering into an EPA. The forms as originally enacted contained little in the way of guidance or protections and the concern was that this led to misuse. An important goal of the new forms was to protect donors against attorney abuse, and to make both donors and attorneys more aware of their rights and obligations under an EPA. This is why attorneys now have to acknowledge reading the notes.
The new forms are expressed in plain English and are aimed at providing donors with clear guidance as to selection of the options that are available and simplifying the selection of options by tick boxes. They are also aimed at providing attorneys with clear explanations of their powers under EPAs and the circumstances in which can be used and restrictions on how they can be used.
We acknowledge that there are a couple of additional options for advisors and clients to consider but the simplified form and tick boxes facilitate selection. We would suggest these are the very sorts of things that ought to be discussed with donors.
We appreciate that it takes a while for new ways of doing things to feel comfortable. It is early days for the forms and the ministry is actively participating in helping practitioners make the forms work for them and their clients. It is important to note that the forms have been made available in an editable format so they can be adapted to each client’s requirements. The special conditions sections can also be used.
Practitioners are not obliged to use the online forms and can design their own from the prescribed forms in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008. Variations within the scope of section 95(2) of the Act can also be made. We also note there are commercially available versions of the forms.
We confirm the ministry’s website version of the forms will evolve over time as we receive feedback and gather information from the public and practitioners.
Last updated on the 2nd June 2017