Tuesday, July 23, 2013

When can an attorney accept their position?

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Photo Credit: Robin Hutton cc

Today’s post considers when an attorney may accept their position under an enduring power of attorney (EPA).

This issue was recently considered in DC [2013] QCAT 108. As usual, a full copy of the case is available here - http://www.austlii.edu.au/au/cases/qld/QCAT/2013/108.html.

In this case, DC had executed an EPA appointing his wife and his son as his attorneys. DC subsequently lost capacity, and his attorneys attempted to use the EPA. However it soon came to light that there were numerous errors in the document, and to remedy this, the attorneys applied to the Queensland Civil Administration Tribunal (QCAT) for a ruling that the EPA was valid.

While there were other issues with the EPA, a key concern was that the son had signed his acceptance as attorney before his father signed the document.

QCAT confirmed that an attorney cannot accept their appointment until an EPA has been executed by the principal who is granting the power in the first place. Here, QCAT found that given DC had not signed the EPA before his son, no grant of power had been made and therefore the son’s purported acceptance was invalid.

QCAT also confirmed however that the invalid acceptance could be remedied by the son simply re-executing the EPA to accept his appointment – and this was possible even though DC had already lost capacity.

Until next week.