Enduring Power of Attorney: Putting Plans in Place

What can a person with capacity do?

A person who has decision-making capacity can plan in advance and appoint a person they trust (and who is a suitable person to make particular decisions) to make decision for them in the future when they may lack capacity. Many of the abuses which occur, are where decisions are made by family members and others (including professionals) which ignore the rights and wishes of an older person or a person with a disability. One such example is the right of a person to decide where they wish to reside and/or receive care.

Many older people would wish to remain in their own homes and to die at home but are denied the right to do so by others making decisions on their behalf, which may be for the convenience of others but are not in accordance with the wishes of the older person. It is important that older people do express their wishes with regard to such matters and to express those wishes in writing.

Enduring power of attorney

The level of financial abuse of an older person is often facilitated because the older person has not created what is termed an Enduring Power of Attorney (EPA). An EPA is the giving by a person, when they have decision-making capacity, formal authority to another person called an attorney to make decisions when they are no longer able to make those decisions for themselves in the future. It is possible to appoint more than one person and the attorney(s) may be a family member or friend. The authority given to an attorney may be the general authority to make decisions with regard to all or a specified part of a person’s property and affairs or to do specified things in relation to property and affairs.

The authority given to an attorney may also include decisions in relation to personal care and wellbeing decisions – to include accommodations such as to whether the person should receive care in a nursing home or at home. The authority given in an EPA can also be given subject to conditions and restrictions and can also direct the attorney to consult with other persons. This can be useful in a family situation where one or two adult children may be appointed and a parent is anxious that other children be consulted in relation to decisions to be made.

For the EPA to be valid certain formalities must be followed. The EPA must be made when the person making the EPA has decision-making capacity and it must be in writing. To make an EPA it is necessary to seek the advice of a solicitor.

The solicitor is also obliged to make a statement confirming that he or she is satisfied that the person understands the implications of making the EPA (the giving of authority to an attorney to control and manage finances and property in the future). The solicitor must also state that he or she is satisfied that the person is aware that the EPA may be varied or revoked prior to it coming into effect and that the solicitor has no reason to believe that the person was put under pressure or coerced into making the EPA.

At the time of the making of the EPA it is also necessary to obtain a statement from a medical practitioner (which can be a GP) that at the time of making the EPA the person had the capacity to understand the implications of creating the EPA. The attorney/s must also confirm his or her understanding of undertaking to act as attorney and is also obliged to undertake to act in accordance with the authority conferred in the EPA.

There are other formalities to be complied with including the giving of notice to family members of the fact that an EPA has been made. An EPA only comes into effect when it is registered and when the person lacks the capacity to make the decisions set out in the EPA. Currently registration takes place with the High Court but on the commencement of the Assisted Decision-Making (Capacity) Act 2015, an EPA must be registered with the Director of Decision Support Service and an attorney will then be obliged to report annually to the Director.