A power of attorney is a legal document where you (Known as the Donor) give another person (known as your Attorney) the power to make decisions and sign legal documents on your behalf. It can be limited to signing one document or it can cover all of your property. You can cancel this power at any time by contacting the Decision Support Service (DSS). The DSS is a public body established within the Assisted Decision Making Capacity Act 2015.
An Enduring Power of Attorney is a legal document that only takes effect when you lose capacity.
The Assisted Decision Making Capacity Act 2015 which came into force on 26 April 2023 governs the area of EPAs. An EPA made on or after the 26 April 2023 must be registered with the DSS. An EPA takes effect once the donor becomes incapacitated and the DSS have been notified of this loss of capacity.
An EPA made before the 26 April 2023 only takes effect when it is registered with the High Court by your Attorney. Only then does the Attorney have the power to make decisions and sign legal documents on your behalf. Until then, it has no effect and you can cancel the Enduring Power of Attorney.
Talk to your solicitor, who will guide you through the process.
Capacity is the ability to make decisions. It involves understanding the facts and circumstances on which a decision is based, the ability to keep those facts and circumstances in mind and to weigh up those facts when making a decision.
Everyone is presumed to have capacity until proven otherwise. Capacity is affected by illnesses such as dementia and Alzheimer’s, and sometimes by a serious injury to the brain.
A person should think about making an Enduring Power of Attorney if they are worried about losing capacity or if they are suffering from an illness that could affect their capacity in the future.
Choosing your Attorney
You are free to choose your Attorney. You may choose a spouse, partner, friend, family member, colleague or other person. You may choose more than one person to act as your Attorney.
If you have more than one attorney you must set out whether they are to make decisions together or separately.
How to make an Enduring Power of Attorney
An Enduring Power of Attorney must be completed according to strict legal guidelines.
You will have to firstly register an account on the DSS webpage. Once you have a myDSS account you can start the application process.
Once you have completed all applicable forms you will have to register these with the DSS within 3 months.
You must notify the following people if you are making an EPA:
You may wish to speak to your solicitor if you want to be guided through the process