Introduction
An Enduring Power of Attorney or EPA is a document you sign while you have mental capacity appointing a person to act for you, to manage your legal and financial affairs in the future. The person that you appoint is normally called the “Donee” or “Attorney” and you, as the person who makes a power of attorney, are normally called the “Donor”.
There are many good reasons why a person may wish to enter into an arrangement to cater for a possibility of that person losing their mental capacity in the future. People can lose their mental capacity for all types of reasons, through accidents, old age, an onset of a degenerative mental condition. Also, loss of capacity can be temporary or permanent and can happen at any stage in a person’s life. Therefore, it is more than sensible to have in place an arrangement whereby somebody can manage your legal affairs in the event that you have lost your capacity.
If you have lost your legal capacity, you are not entitled to buy and sell property, open bank accounts, deal with your monies or give instructions regarding your financial affairs. If you have not in place an attorney to cater for these type of circumstances and you lose capacity, the only option of your relatives and friends is to make you a Ward of Court. The Ward of Court system is one where your financial affairs will be managed by family and friends, but supervised by the Hight Court. A Ward of Court procedure is more cumbersome than having in place an EPA.
Medical Certificate
A key criteria of entering into an EPA is that you now have mental capacity. The system requires that you obtain an up-to-date medical certificate from a GP or other qualified specialist (for example, consultant geriatrician, a psychiatrist etc.) certifying that you have capacity to manage your legal affairs.
The person making the EPA must sign the EPA.
This is the person who will act for you. They will sign your documents. If you are married it is normally your spouse with a child as a substitute. Or it can be any one of your children.
You must appoint two notice parties. These persons will be notified of your creation of the EPA and the fact that you have appointed an attorney to act for you. There are clear rules in relation to the notice party.
- None of them shall be an attorney under the power.
- At least one of them shall be:
- The donor’s spouse, if living with the donor, or
- If the above does not apply, a child of the donor, or
- If either does not apply, a relative (if any) of the donor.
A solicitor must witness the signing by you of an EPA and must also be satisfied that you have mental capacity to understand the entry into of the EPA.
Your doctor or consultant must also sign the EPA. Prior to their signature they will interview you and ensure that you have mental capacity to enter into the EPA and understand the documents. You must visit your GP before you sign your EPA.
The steps
Once you have visited your GP and your GP is satisfied that you have mental capacity, you should attend your solicitor who at that point should make arrangements for the signature of your EPA. It will be then signed by the solicitor and also by the attorney. At that point you will notify the two notice parties of the existence of the EPA. The notice parties should send back to you or your solicitor a receipt confirming that they have received the notice from you.
The purpose of the notice parties is a form of protection. It is designed to ensure that a person is not hoodwinking a Donor or otherwise putting them under pressure to enter into an EPA and the notice parties act as a form of supervision or as a warning at least.
What happens once it is signed?
An EPA does not take effect until such a time as you lose your mental capacity. So once it is signed you should have a copy of the EPA and also confirmation that the notice parties have been notified. Normally the original EPA is left with your solicitor.
What happens after that?
In the event that you lose your mental capacity, the attorney will have the ability to manage your legal and financial affairs. Therefore, the EPA is a very significant document which gives an attorney/Donee strong rights to manage your legal affairs in the event that you lose capacity.
If you lose capacity a procedure would need to be conducted whereby your EPA is registered. The EPA does not take automatic effect on you losing capacity. It must be registered. An additional procedure is conducted and the notice parties will be once again notified of the steps taken by the Donee to register the EPA. This serves as an added method of protection if you have lost your capacity. Your GP or other qualified medical professional must certify that you now no longer have legal capacity.
Have you any tips with what we should do with our assets?
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Scope of EPA
You cannot enter into an EPA with respect to your medical affairs. Your EPA only regulates your financial affairs. Once the EPA has been registered the attorney will receive a certificate confirming his or her appointment on your behalf. The attorney then (unless you have put limits on their actions in the EPA) can conduct all of your legal and financial affairs as if you had capacity. They can close your bank accounts, deal with your nursing home, sell property and pay your suppliers.