Key issues that can trip you up when putting in place an Enduring Power of Attorney

A father appointed his son, who lived overseas,  as his Attorney under an Enduring Power of Attorney.  The Enduring Power of Attorney (EPOA) was sent to his son for signing. However, it was never signed by the son.  The father then lost capacity.  

As it was not signed while the father had capacity, the father did not have a valid EPOA in place when he lost capacity, and his family had to apply to the Court for a Property Manager to be appointed.  This can be a long and costly process. 

Here are a few things to ensure your EPOA is validly in place before losing capacity:

• Ensuring the Donor’s signature is witnessed by the right person. This can be witnessed by an authorised witness (such as a lawyer, a legal executive who meets certain requirements, or an authorised officer or employee of a trustee corporation like Public Trust).  The witness is also required to complete a certificate confirming that they have provided the Donor with advice on the EPOA and that the Donor understood that advice.  
• Ensuring an attorney(s) and  successor attorney(s) have signed the EPOA and that their signatures have been witnessed correctly. Their signatures can be witnessed by any independent person who is not the Donor or the person who witnessed the Donor’s signature. The witness must be over the age of 18 and should not be a relative of the attorney, or of the attorney’s spouse or partner, or live at the same address as the attorney.
• At the time of signing it is imperative to ensure that the document is dated. This is because EPOAs will not be valid and active until and unless they are signed completely by all parties- this means that the Donor and attorney must both have signed the documents in order for them to be valid.
• It is our view that these documents cannot be signed retrospectively by the attorney, successor attorney and witnesses after a Donor loses capacity. It is advisable to promptly complete the signing requirements so the EPOA can become valid as soon as possible. If it is being signed at separate occasions, this may lead to a delay in the EPOA signing process beginning, and it becoming valid.
• The attorney(s) and successor attorney(s) will also need to sign the original EPOA document signed by the Donor.  The ability to sign copies of EPOAs (e.g.  including sending it by email), and have the EPOA be valid when signed in this way only existed during the pandemic and is no longer available.  A signed copy of an EPOA (rather than original) will only be valid if it was signed during the pandemic. 

You are required to obtain legal advice when putting your EPOA in place. This advice will provide you with explanations as to the effects and implications of the EPOA and answer any questions you may have.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.