Making decisions : helping people who have difficulty deciding for themselves : a guide for legal practitioners.

  • Great Britain. Lord Chancellor's Department
Date:
2003
Catalogue details

Licence: Open Government Licence

Credit: Making decisions : helping people who have difficulty deciding for themselves : a guide for legal practitioners. Source: Wellcome Collection.

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    What ts the test for capacity to make an EPA? Legal practitioners who draw up an EPA must be satisfied that the client has the required capacity (Re K, Re F [1988] Ch 284). Different levels of Capacity are needed to create an EPA from those required to manage day-to-day matters (Re K, Re F 1988). It may be desirable to have an EPA signed and registered immediately in some cases. The Law Society has issued guidelines on EPAs to assist solicitors to assess a Client’s Capacity and to take full and careful instructions from the donor. In particular, the guidelines cover the choice of a suitable attorney(s), the extent of powers to be delegated under the EPA, deciding when the EPA is to come into effect, and possible limitations on the attorney’s authority to make gifts of the donor’s assets. In order to minimise the risk of abuse, all of these matters require careful attention by the donor before making the EPA. What happens when the donor loses capacity? The attorney must register the EPA with the Public Guardianship Office as soon as the donor has become, or is becoming, mentally incapable of managing their own affairs. Once the EPA is registered, the attorney can take over the handling of the donor’s property and affairs as specified by the donor in the EPA document. The donor can no longer make financial decisions for him/herself unless this has been agreed in advance, although it will always be good practice for the attorney to consult with and involve the donor as far as possible.
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