Capacity Required for an Enduring Power of Attorney
One critical question to be considered when preparing an Enduring Power of Attorney is whether the person granting the Power of Attorney ("the donor") has the requisite legal capacity. The Irish Courts have begun to consider the capacity required by a donor to effect a valid Enduring Power of Attorney. Ms Justice Marie Baker in the recent High Court case "In the matter of an application for registration of an Enduring Power of attorney of SCR" outlined what a donor should understand in order to grant a valid EPA.
In that case two sisters got a High Court order preventing their brother getting power of attorney over the affairs of their father who suffers from dementia.The sisters claimed their father did not have capacity to consent to enduring power of attorney, giving the son control over the father’s general affairs, including finances and property with no express limitations.They also claimed undue influence or fraud was used to induce their father to hand over the power.
The brother said his father was aware of what he was doing and was sufficiently aware to express concern about how a shortfall in payments to a nursing home where he was living would be met. Ms Justice Marie Baker said she was not satisfied the solicitor who drew up the documentation, and the father’s GP who certified it, had followed best practice in relation to execution of the power of attorney certificate.
The last time the GP examined the father was seven weeks before the power was executed by the man, the judge said. A month after the doctor’s last examination, the father did not have capacity and displayed signs of confusion and agitation, she said. The court heard the father had been showing signs of dementia for around two years before he was moved into the nursing home on October 22nd, 2013 under the “Fair Deal” scheme whereby the State pays the bulk of the care costs.
He had been found on the road on a number of occasions in his dressing gown and in poor weather conditions, a public health nurse said. Ms Justice Baker said his GP carried out a mini-mental health test on August 30th, 2013, in which the man scored 23 out of 30, suggestive of moderate dementia. The doctor said that score meant he was capable of basic understanding of matters at that time, the judge said. The GP noted he was not in the “worst stages of dementia” at the time and prescribed a specific drug for symptoms of Alzheimer’s although this is not believed to halt or reverse the process of cell damage that causes the disease, the judge said.
On September 10th, the last time the doctor examined him, he found the father to be lucid and showing no sign of confusion. Ms Justice Baker said it was quite apparent the GP executed the statutory power of attorney certificate on November 6th in circumstances where the doctor’s last consultation would have suggested lack of cognitive capacity.
The GP said his certification arose from “reliance on information” given by the solicitor dealing with the matter. The solicitor said the father was lucid on the day he signed the power of attorney instrument. The judge said the Powers of Attorney Act 1996 did not envisage circumstances where a doctor would rely on the opinion of a solicitor with regard to capacity, especially where a person is suffering from a progressive dementia condition as this man was.
While the legislation imposes no time limits on the execution of the power, the fact independent medical certification is required means responsibility (for certification) cannot depend on the opinion of another non-medical person, she said.
Best practice was not followed and it would have been preferable if the doctor’s certificate was based on an assessment carried out closer to the time of execution of the power of attorney, she said.
The judge said she was not satisfied the evidence as a whole showed the father was sufficiently lucid at the time to understand the nature of general power of attorney or that its scope and purpose was fully explained to and understood by him. The objection of the sisters was sustained and the court would refuse to order that the power of attorney be registered, she ruled.
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