Introduction
New legislation came into effect in April 2024 which governs Enduring Powers of Attorney. This legislation is known as the Assisted Decision Making (Capacity) Act 2015. Enduring Powers of Attorney are dealt with under part 7 of the 2015 act.
What is an Enduring Power of Attorney
An Enduring Power of Attorney is a document that you enter into now while you have capacity appointing somebody who can sign for you or deal with your legal affairs in the event that you lose capacity in the future. It is a valuable document as it gives you the opportunity to have a voice even if you have lack capacity. It means that you can put in place now steps to protect you in the future so that you can shape your future even though you may have lost your mental capacity.
Who is your attorney?
It is normally the case that in a husband-and-wife situation that a spouse will act for each of the other. i.e. one spouse would be the Attorney of the other. It is often the case in a husband-and-wife situation as well that they may also appoint children either as sole attorneys or have children appointed as joint attorneys with a spouse.
Steps in creating your enduring power
Once you have selected your attorney you then must go through various steps in creating the Enduring Power of Attorney. The body that now regulates Enduring Powers of Attorney under the 2015 Act is called the Decision Support Service. It has implemented procedures that allow you to create an Enduring Power of Attorney. However, these procedures are somehow cumbersome.
The DSS has introduced a new “Digital First” strategy. That means that Enduring Powers of Attorney generally should be created online using the DSS platform. This is not particularly clear cut as it involves having the person making the Attorney, that is the donor and the attorney themselves, being verified by a particular system operated by the Government. This system is called the MyGovID system. You must first have a MyGovID and also have a PPS card. By having these in place then you can be fully verified using the DSS System, as long as you have in addition, an email and also a mobile phone. So therefore, you need a range of documents in place prior to conducting your Enduring Power of Attorney.
Do you need a solicitor to make an enduring power of attorney?
We have a lot of experience in dealing with clients in putting in place enduring powers of attorney. As mentioned, these new procedures are time consuming and cumbersome, and it is advised that you have with you a Solicitor to guide you through the process. In any event, a Solicitor must be used for the EPA process because to register your EPA you must have a statement by a Solicitor confirming that you were not put under pressure in making the EPA or that there was no undue influence or fraud in the making of the EPA. It is difficult for a Solicitor to give that statement if they are not involved at the very start.
Do you need a doctor to make an enduring power?
In addition to having a Solicitor involved you will need a certificate from a doctor certifying that you have mental capacity. That means that you will have to write to a doctor and be examined
by a doctor. The doctor must complete a particular form certifying that they are aware that you have capacity and that there is no question about your capacity.
Conclusion
While EPAs under the 2015 Act were supposed to be streamlined and made easier, hurdles have been put in place due to the criteria of the DSS. Everybody should have an EPA and should not be put off by these hurdles, however, a gentle hand of a helpful Solicitor is vital in producing a final form 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?
So, you are now getting into the meat of your will. What do you want to do with your assets. Lots of couples want to treat their children as equally as possible. That may nor may not be the best course of action, here we set out our tips for consideration in leaving your assets.
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.