Capacity to make an Enduring Power of Attorney
It is a requirement of all enduring powers of attorney that the donor makes the document freely and understands its nature, importance and effect, and that the witnesses are satisfied of this.
See Instruments Act 1958 s. 118 re Enduring Power of Attorney (Financial); Medical Treatment Act 1988, Schedule 2 re Enduring Power of Attorney (Medical Treatment) and Guardianship and Administration Act 1986 Schedule 4 re Enduring Power of Guardianship.
See also Capacity.
To make sure that your client has understood the nature, importance and effect of each enduring power of attorney and to create a record of this for your file, it is a good idea to develop a checklist of questions to ask before executing any enduring power of attorney. (See Office of Public Advocate publications.)
To determine whether your client is making their enduring powers of attorney voluntarily and freely, ask questions such as:
- What brought you to make your powers of attorney today?
- Do you believe that your nominated attorney(s) understand and respect your wishes and will make the decisions they believe you would make for yourself?
- Has anything ever caused you to doubt your trust in your nominated attorney(s)?
To test their understanding of the instruments, ask questions such as:
- What is an Enduring Power of Attorney (Financial)/ Enduring Power of Attorney (Medical Treatment)/ Enduring Guardian?
- Who have you appointed?
- How are they appointed?
- When does the power start?
- Are there any limitations, conditions or instructions on your EPoA Financial?
- What sort of things can your attorney(s) do for you?
- If you lose capacity, can the attorney(s) still continue to act?
- What sort of decisions can an agent/ guardian make?
- When can the alternate agent/guardian act for you?