MAKING ENDURING POWERS OF ATTORNEY

Following changes to the PPPR Act and Regulations in 2017, there are new standard explanations and prescribed forms for the making and cancelling (revocation) of an EPOA. The threshold test is: “understand the nature of the instrument, potential risks and consequences”, s 94A(7)(ab) and (b).

A certified witness (usually a lawyer or legal executive) must certify that they believe on reasonable grounds that the donor:

• understands the nature of the EPOA; and
• the potential risk and consequences of the EPOA, and
• is not acting under undue pressure or duress, s 94A(7)(ab).

And further:

• that the witness has no reason to suspect that the donor was or may have been mentally incapable at the time of signing the EPOA; s 94A(7)(b), and
• the witness is independent of the attorney and the witness is satisfied that no more than negligible risk of a conflict of interest arises s 94A(7)(c).