Enduring Power of Attorney - Has the Pendulum Swung too Far?

Abstract

This paper examines the 2007 amendment to the Protection of Personal and Property Rights Act 1988. The changes sought to address concerns raised by the Law Commission that lack of safe-guards in Enduring Power of Attorney legislation was exposing donors to the danger of financial abuse, or neglect through the misuse of EPA powers. While these concerns were significant, the legislative response went too far, resulting in overregulation that both undermines the purpose of EPAs as an expression of individual autonomy and sets up financial barriers that serve to deter people from using the system. While some aspects of the amendment such as the introduction of a presumption of competence and attorney obligations are welcome changes that promote the rights of donors, requirements that increase the cost and complexity of the system are undesirable and should be repealed. This paper provides an assessment of the significant changes, and briefly raises other suggestions for the improvement of EPA law and elder protection which should be given further consideration.