An elderly man had appointed his wife and daughter to be his attorneys under an Enduring Power of Attorney (EPA) for property.

The man lost mental capacity, and so the EPA came into effect.  However, the man’s wife was elderly herself and did not feel up to the task of being his attorney.  She wanted to stand down and have their daughter be the sole attorney.

The situation was not as simple as the wife telling their daughter she was standing down.  There is a formal process that needs to be followed under the Protection of Personal and Property Rights Act before an attorney can stand down from their appointment in an EPA.

How does an attorney stand down?

The attorney who wants to stand down has to give a formal “notice of disclaimer”. 

If the donor has mental capacity, this can be done in writing to the donor.  However if the donor has lost mental capacity, as in this case, the disclaimer must to be filed in the Family Court. 

This is the approach to take where there is another attorney already appointed in the EPA, either as a co-attorney or a substitute, who can step in to replace the attorney who is standing down.

As part of this process, the advising lawyer will need to consider whether co-attorneys were appointed jointly or severally (to act separately), as there may be some additional complexities if they were appointed jointly only.

What needs to be filed in Court?

As well as filing a notice of disclaimer, the attorney needs to explain to the Court what is happening and why.  The application will likely need to include:

  • A copy of the relevant EPA;
  • Evidence that the donor has lost mental capacity (e.g. something in writing from the medical practitioner who assessed the donor); and
  • A signed consent from the attorney who is taking over, explaining why they think it is best for the attorney to disclaim their power.

What if there is no other attorney appointed?

If the relevant EPA does not appoint a co-attorney or a substitute attorney, the process discussed above will not be appropriate.  In that case it will be necessary to make an application to the Family Court for a replacement attorney to be appointed. 

It is very important when making Enduring Powers of Attorney that you give thought to who you are appointing and whether they will be suitable in the long term, as these sorts of documents are often made and then not updated for many years. 

If you want to make Enduring Powers of Attorney, or if you are an attorney and need help with performing your role, speak with an experienced advisor who can give advice that best suits your situation.