Registering an enduring power of attorney? Watch out for the new practice direction

Registering an enduring power of attorney? Watch out for the new practice direction

An enduring power of attorney is a document created which gives power to another person if you lose capacity to make decisions for yourself. The document should be prepared when you are in full capacity, meaning, when you are capable of making your own decisions. You determine who will make important decisions on your behalf in the event that you can no longer do so.

It is extremely important that you appoint an attorney who you trust to make these decisions. Once it becomes necessary, the attorney can, not only make decisions on your behalf, but sign legal documents for you.

The enduring power of attorney must be completed according to strict rules and must be signed by you and your attorney.  Your doctor and solicitor must also sign a declaration to say that you have capacity at the time.

Registering the document

Once the attorney believes that you may be losing capacity to make decisions on your own, they should then proceed to register the document. This is done by applying to the Registrar of Wards of Court Office, part of the High Court.

A medical certificate is required to register the document. The medical certificate must state that you are no longer in a position to make your own decision, that is to say, you no longer have capacity.

Changes

The new practice direction that came into effect on 16 November 2020 and it concerns the content of medical certificates. All medical certificates must now include the following information.

  1. The date, place, duration and circumstances in which the medical examination was carried out.
  2. Any prior relationship between the medical practitioner and the donor.
  3. The nature of the examination carried out by the medical practitioner.
  4. The medical practitioner’s opinion as to whether the donor is or is becoming incapable of managing their affairs, and if so,
  • the nature of their illness/condition;
  • the likely date of onset of that illness/condition;
  • their symptoms;
  • the evidence relied upon in making their diagnosis; and
  • whether the illness/condition is permanent or likely to improve.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.*