ENDURING POWERS OF ATTORNEYBARRY HEALY & COMPANY, SOLICITORS.

ENDURING POWERS of ATTORNEY

Recent important changes

The Enduring Power of Attorney (EPA) system has been in place for several years now, but some stakeholders were uncomfortable with the entire system being administered through the Wards of Court Office.

Various changes were therefore introduced on 26 April 2023, but any EPAs executed before that date are not affected at all and such EPAs will proceed under the old system which has been in place since 1996. If any such EPA requires to be registered at a future date, it will still be done through the Office of Wards of Court like before.

EPAs which are executed after 26 April 2023, will be processed under the Assisted Decision-Making Act 2015. (the ADM Act).  The purpose of the EPA remains the same while the 2015 Act provides for an enhancement to the system with some new features. The main takeaways from the new regime are as follows:

1.       A new body, the Decision Support Services (DSS) is to set up an online portal to let members of the public access the site for information and start the whole process of making an effective EPA.

2.      The DSS will now supervise and register the EPA, which under the old system, had been done by the Wards of Court Office.

3.       Once the EPA has been completed and signed, you are obliged to register it with the DSS, unlike the old system where you registered it only when it became medically necessary.

4.      There are some additional parties you must notify once the EPA has been put in place.

5.      When the Attorney has reason to believe that the donor lacks capacity to make important decisions, he must notify the DSS.  This notification must be accompanied by written statements from two doctors supporting this belief.

6.      The donor of the power must also be put on notice of the notification to the DSS and indeed can lodge an Objection to this within five weeks.

7.      There are obligations on the Attorneys to file a written report with the DSS each year outlining all monies paid to them along with their costs and expenses.   The Attorneys are responsible for keeping proper accounts and records.

8.      The DSS can visit the Attorneys if they receive a complaint or to check they are acting in the best interest of the donor.

The Wards of Court office is a creature of Victorian statutes and the above represents efforts by the Department of Justice to bring the entire system more up to date.