Assisted Decision-Making (Capacity) Act 2015

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Registration of an instrument creating an enduring power of attorney

69. (1) On receipt of an application under section 68 , the Director shall review the application and any objections received under section 71 and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met:

(a) the enduring power of attorney and the instrument creating it are in accordance with sections 59 , 60 , 62 and 63 ;

(b) the attorney is a suitable person within the meaning of section 59 (6);

(c) the attorney is eligible for appointment within the meaning of section 65 or not disqualified by virtue of section 66;

(d) notice has been given in accordance with section 61 and section 68 (3); and

(e) the application is in accordance with section 68 .

(2) Where, after reviewing an application under section 68 , the Director is satisfied that the application is in order, he or she shall, subject to section 71 , register the instrument creating the enduring power of attorney.

(3) Where, after reviewing an application under section 68 , the Director forms the view that one or more of the criteria in paragraphs (a) to (e) of subsection (1) are not satisfied, he or she shall notify the attorney and the donor of his or her view, provide reasons for that view and give the attorney and the donor an opportunity, within a reasonable timeframe specified by the Director, to respond.

(4) Following a review of any response received pursuant to subsection (3), the Director shall—

(a) where he or she is of the view that the criteria set out in paragraphs (a) to (e) of subsection (1) are satisfied, register, subject to section 71 , the instrument creating the enduring power of attorney, or

(b) where he or she remains of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection (1) is not satisfied, refuse to register the instrument creating the enduring power of attorney and notify the attorney and the donor of that fact and the reasons for his or her view.

(5) An attorney whose application under section 68 is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court.

(6) Upon an appeal under subsection (5), the court may—

(a) require the Director to register the instrument creating the enduring power of attorney,

(b) affirm the decision of the Director, or

(c) make such other order or declaration as it considers appropriate.

(7) Following registration of an instrument creating an enduring power of attorney, the Director shall send an authenticated copy of the instrument to the attorney and the donor.

(8) A document purporting to be a copy of an instrument creating an enduring power of attorney which has been authenticated by the Director shall be evidence of the contents of the instrument and the date upon which it was registered.