Assisted Decision-Making (Capacity) Act 2015

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Revocation and variation of enduring power

73. (1) An enduring power of attorney may be varied or revoked by the donor, where the instrument creating the enduring power of attorney has not been registered and where the donor has capacity to make the variation or revocation, as the case may be.

(2) A variation or revocation under subsection (1) shall be done in such form as shall be prescribed.

(3) Subject to section 60 (3), a revocation or variation of an enduring power of attorney shall be signed by the donor and his or her signature shall be acknowledged by 2 witnesses and section 60 (4) shall apply with the necessary modifications.

(4) A variation or revocation of an enduring power of attorney shall be accompanied by the following statements:

(a) by the donor, that he or she understands the implication of varying or revoking the enduring power, as the case may be;

(b) by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she—

(i) is satisfied that the donor understands the implication of varying or revoking, as the case may be, the enduring power, and

(ii) has no reason to believe that the variation or revocation, as the case may be, is the result of fraud, coercion or undue pressure on the donor;

(c) by a registered medical practitioner that in his or her opinion, at the time of the variation or revocation, as the case may be, the donor had the capacity to understand the implication of the variation or revocation;

(d) by such other healthcare professional as shall be prescribed that in his or her opinion, at the time of the variation or revocation, as the case may be, the donor had the capacity to understand the implication of the variation or revocation; and

(e) by the attorney, that he or she is aware of the variation or revocation and undertakes to act accordingly.

(5) Subject to subsection (6) a donor may, after an instrument creating an enduring power of attorney has been registered, revoke the enduring power where he or she has capacity to do so.

(6) A revocation referred to in subsection (5) is not valid unless an application is made to the court and the court is satisfied that—

(a) the donor has done whatever is necessary in law to effect an express revocation of the enduring power of attorney and had capacity at the time of the purported revocation, and

(b) the donor has given notice to the attorney of the revocation.