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Medical Reports in Applications to Register an Enduring Power of Attorney – New Practice Direction

By: Fionnuala Cullinane | Posted on: 26 Nov 2020

The President of the High Court has issued a new Practice Direction regarding the content of medical affidavits and medical reports in support of applications to register an Enduring Power of Attorney (EPA). 

This came into effect on Monday 16th November 2020. 

Background:

The purpose of an Enduring Power of Attorney (EPA), is to appoint a person (an Attorney), to look after your financial and/or personal affairs, in the event that you no longer have the mental capacity to do so yourself. The EPA is created by a person (donor) while they still have mental capacity. The power only comes into effect when the donor becomes mentally incapable of managing their affairs, at which time, the Attorney must apply for registration of the EPA. The Attorney is usually a family member or close friend, and should be someone that the donor trusts to step into their shoes, and make decisions on their behalf when they are no longer able to do so.

The EPA will grant authority to the Attorney, in relation to the persons property and affairs, or may just give authority to do specific acts on the persons behalf. Authority can also be given in relation to Personal Care decisions.

How to Create an EPA?

An EPA is a legal document, and it is advised to seek guidance from a solicitor before creation of the document. There are key steps to creating an EPA and we refer you to our guidance note on creating an EPA here . 

When to register an EPA?

When the proposed Attorney believes that the Donor has become incapable of managing their own affairs, an application is made to the Registrar of Wards of Court to register the EPA. The Attorney must have a medical certificate that the Donor is incapable of managing their affairs.

The EPA can only come into force when it has been registered.

New Practice Direction

The new practice direction that came into effect on 16th November 2020, concerns the content of medical affidavits/medical certificates used in registration of Enduring Powers of Attorney.

Any certificate or medical report that is to be used to register an EPA, must include the following information;

(1) The date, place, duration and circumstances in which the medical examination was carried out.

(2) The nature and duration of any prior relationship between the medical practitioner and the respondent.  

(3) The nature of the examination carried out and details of the test and/or capacity tools deployed for the purpose of concluding whether the donor is or is becoming incapable of managing his or her affairs.

(4) Whether in the opinion of the registered medical practitioner, the donor is, or is becoming incapable of managing his or her affairs. 

(5) Where the medical practitioner is of the opinion that the donor is or is becoming incapable of managing his or her affairs he/she should state:

  • the nature of the respondent’s illness/condition;
  • the likely date of onset of that illness/condition;
  • the symptoms pertaining to that illness/condition;
  • the evidence relied upon in making their diagnosis; and
  • whether the illness/condition is permanent or likely to improve.

Conclusion:

Our Team can provide practical advice and support to the appointed Attorney if the time has come to register an Enduring Power of Attorney. We offer a discreet, respectful and personal service to all our clients.

The medical practitioner that is completing the report as part of creating an EPA must be aware of these new requirements to ensure that it is not rejected.

If you would like to speak with someone today regarding Enduring Powers of Attorney, please contact Emma Comyn or Fionnuala Cullinane.

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