An Enduring Powers of Attorney (otherwise known as an “EPA”) is a legal document which allows you to appoint one or more persons to make decisions and act on your behalf in the event that you lose your mental capacity at a later date. The law allows you (the “Grantor”) sign a legal document – an Enduring Power of Attorney – to appoint one or more persons – usually a close family member (known as “Attorneys”) in advance of mental incapacity to make decisions, not only for financial matters, but also about health and personal welfare.
The procedures which applied up to the 26th April 2023 were as directed by the Enduring Powers of Attorneys Regulations 1996 (“The 1996 Regulations”).
An EPA continues in effect if you lose mental capacity.
By signing an EPA you ensure that your interests are protected by someone you trust, in case you are unable to manage them yourself – perhaps if you have had an accident or illness. If someone is diagnosed with a condition that is likely to cause loss of mental capacity, such as:
– Neuro-disability/brain injury
– Alzheimer’s and other forms of dementia
then it is very advisable to think about who will take care of their affairs and make decisions for them.
Protections for you at time of signing an EPA
Not only must a Registered Medical Practitioner (your GP or Medical Consultant) sign a Medical Certificate at the time you sign the EPA, to confirm your mental fitness at that time and that you understand what you are doing; but also, for your protection, two other persons (“Notice Parties”) must be notified at that time that you are signing the EPA. This is relevant as, in the event of your subsequent mental incapacity at a later date and your Attorneys seeking to register the EPA to take control of your affairs, your Notice Parties must receive 5 weeks` notice in advance of the application to register the EPA (see below).
Changes under the Assisted Decision-Making (Capacity) Act 2015.
Under the 1996 Regulations the signed EPA was merely retained in safe keeping in the Solicitor`s Office. It was only registered on a subsequent date in the High Court Office in the event that the Grantor became ill and incapable of taking care of their legal affairs. Now however under the Assisted Decision-Making Capacity Act 2015 (“the 2015 Act”) ( as amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022) it will no longer be sufficient to simply sign the EPA in your Solicitor’s office.
A new process has now been created under the 2015 Act whereby the signed EPA must be registered with the newly created Decision Support Service (in order to confirm its legality) and a process of “Notification” takes place at a later date (instead of “Registration”) in the event that the Grantor becomes incapable of dealing with their affairs. In effect, the EPA is registered with the DSS to ensure full compliance.
Other changes are also being introduced. For instance, the DSS has decided recently that in the Registration process the EPA should be uploaded to the DSS in digital format only, where the document will be created Online on a DSS template.
All of these changes are being brought about on an urgency basis where the old form of EPA will no longer be valid if executed in that format on or after the 26th April 2023. That is, if you sign an EPA after the 26th April 2023in the old format it will be void. It will have no legal effect.
All of this will inevitably lead to further cost. Where previously it was not required for the EPA to be registered and such registration was only required if the Grantor became ill, now in all cases it will be necessary to register the EPA. The justification for this is to ensure that the EPA complies in the first instance with the law; where possibly experience may have shown that a small minority of EPAs executed were found to be invalid some years later at the time of registration.
Still a very sensible course of action
It is a very sensible course of action to sign an EPA; that way you retain control over who can make decisions on your behalf and for your benefit after you have been rendered mentally incapable.
The earlier you decide to draw up an EPA, the better.
For further information on Accident / Personal Injury Claims you should contact:
Morgan McManus Solicitors