A summary of the changes made follows:
1. Where previously two lawyers from the same firm were required to advise each donor separately, the amendments allow the same authorised witness for respective donors in situations where there is no more than a negligible risk of conflict of interest.
2. The amendments provide the donor’s witness with a standard explanation to explain the effects and implications of the EPA.
3. There are additional certification requirements for the donor’s witness.
4. There is provision in the EPA for the donor to revoke all previous EPAs and give notice of this revocation, including after the donor loses capacity.
5. Previously when acting under an EPA, the attorney was required, as far as was practicable, to consult with the donor and any other person specified in the EPA to be consulted. These consultation requirements remain, but the amendments further expand the duty by requiring an attorney, when acting under an EPA, to consult with all other EPA attorneys of the donor (but not with a successor attorney whose appointment has not taken effect).
6. A medical certificate of incapacity no longer has to be in the prescribed form, however, it must still contain the prescribed information as stipulated in the PPPR Act.
7. The donor is able to revoke an attorney’s appointment without revoking the EPA if a successor attorney is appointed.
8. The law has been clarified so that an EPA appointing more than one attorney with several or joint-and-several authority will only cease to have effect when the last remaining attorney’s appointment is revoked by the donor or otherwise ceases to have effect.
9. Whilst previous EPAs that have been properly executed prior to 16 March 2017 will still be effective, this may be a good time to review the state of your EPAs, especially if you have multiple EPAs in existence. This is also a good time to consider preparing an EPA if you don’t already have one in place. If you have no EPAs, and you become mentally incapable, then friends and family who wish to assist in managing your personal care and welfare and property, will need to apply for Court Orders under the PPPR Act. This can take a considerable amount of time and there will be costs incurred.
It may also be a good time to consider and update your asset plan. This includes not only your EPAs but also your wills and asset ownership structures. It is vital such structures (i.e. trusts) are documented and administered properly. Kensington Swan are experts in this area and would be more than happy to assist in any aspect of asset planning.