Test for capacity on making an Enduring Power of Attorney

 

Test for capacity on making an Enduring Power of Attorney

One of the most important duties for a Solicitor is to explain fully the effect of creating and Enduring Power of Attorney to our clients and to ensure that our clients understand what the effect of making an Enduring Power of Attorney. It is not sufficient for a Solicitor simply for the client to respond yes to our explanation. It is important that we carry out a test to ascertain whether or not the client understands the provision of the Enduring Power of Attorney. For instance it is usually important to ask the client to repeat back their understanding of what the Enduring Power of Attorney means.

One of the most important cases on establishing the test for capacity is an English case of in RE (Enduring Powers of Attorney) in REF, 1988 CH 310 which dealt with the test from capacity to sign a general Power of Attorney (which was to continue despite the Donor losing capacity) This case laid down the test of capacity as follows:

Having stated that the test for capacity to create an EPA was that the Donor understood the effect and nature of the document, the Judge Hoffman J set out four items of categories which any person creating an EPA should understand;

1. Firstly, that the Attorney will be able to assume complete authority over the donor’s affairs assuming that is the intention created by the document.
2. Secondly, again if the document provides as such, that the Attorney will be able to do anything with the Donor’s property which the Donor could have done.
3. That the authority will continue if the Donor should be or should become mentally incapable and fourthly that he or she should be or should become mentally incapable, that the powers shall become irrevocable without confirmation by the Court of protection.

There are some slight differences between an English Power of Attorney and an Irish Enduring Power of Attorney e.g. the fourth test would, in Irish terms, be that the Donor understands that of the Powers registered it will be irrevocable without confirmation by the Wards of Court Office in Ireland.

There is a school of thought that in order to have the capacity to sign an Enduring Power of Attorney it does not have to be the case that the Donor himself/herself has the capacity to do all the things that the Attorney will have the ability to do under the Power. The only capacity the Donor needs is the capacity to create the Enduing Power of Attorney itself in accordance with fourfold test above.

If you have any queries with regard any aspect of making an Enduring Power of Attorney or indeed registering an Enduring Power of Attorney please do not hesitate to contact one of the Solicitors in the office on 01-2960666.