The Powers of Attorney Act allows a donor of a power of attorney to provide either that the power of attorney will come into effect on the donor’s mental incapacity or infirmity or that the power of attorney will continue in force despite the donors supervening mental incapacity or infirmity. It classifies both springing and continuing powers of attorney as “enduring” powers of attorney (EPA). The great majority of attorneys exercise their control for the donor’s benefit, but a small number abuse their powers by misapplying or misappropriating property belonging to the donor and therefore additional safeguards against abuse are required. This report lays out current safeguards against abuse of EPA powers and recommends how the Power of Attorney Act should be amended to provide additional safeguards. This will strike a proper balance between the interest of individuals in being able to appoint a trusted person of their own choice to administrator with the least cost and embarrassment while having reasonable safeguards against abuse of the powers given to attorneys. Recommendations include the stipulation that either a lawyer must sign a certificate that an EPA was signed by the donor apart from the attorney and that the donor appeared to understand the EPA, or that a witness must swear an affidavit containing the same statements. When the donor becomes incapacitated and the attorney intends to act under an EPA, the attorney must give notice of this intention to specified family members. The attorney must prepare and keep up a list of property and rights over which the attorney takes control, as well as a list of transactions involving the donor’s property and rights. The attorney must allow qualified persons to inspect these lists at reasonable intervals. The qualified person may ask the Public Trustee to direct the attorney to produce the lists if the attorney does not produce them when requested.
Final Report
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