There have been significant legislative reforms affecting the making of enduring powers of attorney. These recent reforms aim to protect donors (those persons giving the power) from abuses that can occur through their use. Given that it is usually our more senior citizens that make enduring powers of attorney, it is important that donors understand the operation of the power and have the benefit of legislative safeguards in relation to its operation.

The Instruments (Enduring Powers of Attorney) Act 2003 (the Act) has been passed unamended by Parliament, received royal assent and will come into operation when it is proclaimed (or, if not proclaimed earlier, on 1 July 2004). The Act sets out the requirements for making an enduring power of attorney and prescribes new forms to be used (not yet available at time of writing). Some of the main areas of legislative change include:

• the need for witnesses of enduring powers of attorney to provide a written and signed certificate certifying that the donor appeared to have the necessary capacity to make the enduring power of attorney and that it was signed in their presence “freely and voluntarily”;
• the attorney (person given the power) must sign and date a statement of acceptance; and
• the attorney must keep and preserve accurate records and accounts of all dealings made pursuant to the power.

The next edition of the Client Newsletter will look more closely at the reforms in this area.