Changes to EPOA Rules
This article was written by Eloise Toner.
On 16 March 2017 several changes to the Protection of Property Rights Act 1988 (PPPR Act) came into force changing the rules around Enduring Powers of Attorney (“EPOA”). The intention behind the changes is to make EPOAs easier to use and understand as well as remedying ambiguities and issues with the old requirements.
In this article we outline the changes made to EPOA requirements and how this will affect you if you have an existing EPOA or an EPOA that has not yet been fully executed. We will also clarify some misconceptions some people may draw from the new rules.
Changes made to EPOA requirements
Prescribed forms and plain English explanations
The most notable change is that there is now a prescribed EPOA form which must be used by all firms. Prior to the change it was common practice for law firms to draft their own EPOA forms. The prescribed forms are accompanied by plain English explanations and aim to provide clients with a clearer understanding of the effects and implications of an EPOA.
Less restrictive witnessing requirements
Under the old EPOA rules, a mutual EPOA (one where two people are executing an EPOA appointing each other as Attorney) the witness was required to be independent of both parties. This meant that if the solicitor acting had acted for both of the parties in the past (such as for a husband and wife) they could not witness both EPOAs and would need to get one witnessed by another lawyer. Under the new rules, the couple’s Solicitor can witness both signatures so long as they believe there is not a “more than a negligible risk of conflict of interest arising”. We may still require another lawyer to advise one of you in certain circumstances.
More onerous witness obligations
Under the new EPOA rules a witness has more onerous requirements to confirm that they believe the Donor understands the nature and implications of the document they are signing and is not acting under undue pressure.
Consultation with other Attorneys
Under the old rules an Attorney was required to consult as far as possible with the Donor, anybody specified in the EPOA and any other Attorney under another EPOA for the same Donor. Under the new rules the Attorney must also consult with joint attorneys under the same EPOA.
Revoking previous EPOAs
The new forms provide an option of revoking all previous EPOAs of the same kind as the EPOA being created (i.e. the form for an EPOA relating to property allows the Donor to revoke all existing EPOAs relating to property). The revocation is not effective until notice is given to the Attorney under the old EPOA. This notice does not need to be given by the Donor and can be provided by someone else such as the Donors Solicitor at a later date.
Revoking appointment of an Attorney
The new forms allow for a Donor to revoke an Attorney’s appointment without revoking the entire EPOA. So long as there are joint Attorneys or successor Attorneys who can act in place of the revoked Attorney the EPOA will still be affective.
No prescribed form of medical certificate
Under the old rules medical practitioners certifying that a Donor had lost mental capacity had to do so in a prescribed form. Under the new rules the medical practitioner does not have to provide a specific form as long as they provide the required information.
Existing or incomplete EPOAs
If you have an EPOA that was drafted prior to 16 March 2017 but has not yet been fully executed by both the Donor (you) and your Attorneys, you will need to start again on the new forms. Please let us know as soon as you can if you are in this situation.
If you have an existing EPOA that was fully signed and valid prior to March 2017 then this will remain valid and you will not need to execute a new EPOA in the new form.
Misconceptions about the new Forms
You will not be able to fill out the new forms yourself and drop in to your lawyer to have them witnessed. This is a misconception we predict will come now that the new prescribed forms are available online. We will not witness any EPOA form without having first had the opportunity to review the document and provide you with advice on the effects and implications of what you are entering. While you are welcome to fill out the forms by hand as a starting point, we will still require to meet and consult with you and word process your form prior to signing it with you.