The Enduring Powers of Attorney (Northern Ireland) Order 1987

Characteristics of an enduring power N.I.

4.—(1) Subject to paragraphs (6) to (8) and Article 13, a power of attorney is an enduring power within the meaning of this Order if the instrument which creates the power—

(a) is in the prescribed form; and

(b) was executed in the prescribed manner by the donor and the attorney; and

(c) incorporated at the time of execution by the donor the prescribed explanatory information.

(2) The Department of Finance and Personnel shall make regulations as to the form and execution of instruments creating enduring powers and the regulations shall contain such provisions as appear to that Department to be appropriate for securing—

(a) that no document is used to create an enduring power which does not incorporate such information explaining the general effect of creating or accepting the power as may be prescribed; and

(b) that such instruments include statements to the following effect—

(i) by the donor, that he intends the power to continue in spite of any supervening mental incapacity of his;

(ii) by the donor, that he read or had read to him the information explaining the effect of creating the power;

(iii) by the attorney, that he understands the duty of registration imposed by this Order.

(3) Without prejudice to the generality of section 17(3) to (5) of the Interpretation Act (Northern Ireland) [1954 c. 33 (N.I.)] 1954, regulations under paragraph (2)—

(a) may include different provision for cases where more than one attorney is to be appointed by the instrument than for cases where only one attorney is to be appointed; and

(b) may, if they amend or revoke any regulations previously made under that paragraph, include saving and transitional provisions.

(4) Regulations made under paragraph (2) shall be subject to negative resolution.

(5) An instrument in the prescribed form purporting to have been executed in the prescribed manner shall be taken, in the absence of evidence to the contrary, to be a document which incorporated at the time of execution by the donor the prescribed explanatory information.

(6) A power of attorney cannot be an enduring power unless, when he executes the instrument creating it, the attorney is—

(a) an individual who has attained eighteen years and is not bankrupt [F1 or subject to a bankruptcy restrictions order] [F2 or a person in relation to whom a moratorium period under a debt relief order applies or who is subject to a debt relief restrictions order] ; or

(b) a trust corporation.

(7) A power of attorney under section 26 of the Trustee Act (Northern Ireland) [1958 c. 23 (N.I.)] 1958 (power to delegate trusts etc. by power of attorney) cannot be an enduring power.

(8) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.

(9) An enduring power shall be revoked by the bankruptcy of the attorney whatever the circumstances of the bankruptcy.

(10) An enduring power shall be revoked on the exercise by the court of any of its powers under part VIII of the Mental Health (Northern Ireland) Order [1986 NI 4] 1986 if, but only if, the court so directs.

(11) No disclaimer of an enduring power, whether by deed or otherwise, shall be valid unless and until the attorney gives notice of it to the donor or, where Article 6(6) or 9(1) applies, to the court.

(12) In this Article “prescribed” means prescribed under paragraph (2).

F1 Words in art. 4(6)(a) inserted (21.4.2015) by The Insolvency (Northern Ireland) Order 2005 (Consequential Amendments) Order (Northern Ireland) 2015 (S.R. 2015/159), art. 1, Sch. para. 8

F2 Words in art. 4(6)(a) inserted (7.3.2016) by The Debt Relief Act (Northern Ireland) 2010 (Consequential Amendments) Order (Northern Ireland) 2016 (S.R. 2016/108), art. 1, Sch. para. 11