Only 27 enduring powers of attorney (EPAs) have been created since the Assisted Decision-Making (Capacity) Act 2015 came into force on 26 April last year, attendees of a Law Society Professional Training webinar on 12 December were told.

One of the speakers, Richard Hammond SC (partner with Hammond Good LLP), said that an average, busy client firm such as his own would have previously produced around this number of EPAs in a year.

"It is fair to say, by any measure of success, that if the entire country has only done 27 EPAs in eight months, the current system is not working, for whatever reason,” he said.

“The system under the Powers of Attorney Act 1996 was tried and tested, and there was no great call for it to be fixed. Yet we have significant changes since 26 April 2023 under the Assisted Decision-Making (Capacity) Act 2015.”

Section 60(4) problematic

One of the things Hammond (small picture) is finding to be proving problematic in his own practice is the new requirement to have the donor and attorneys present at the execution of an EPA. This is in section 60(4) of the act.

“In practical terms, it confines the appointment of attorneys to those with geographic proximity to the donor, rather than enabling them to be selected based on the donor’s will and preference. This seems to be significantly deterring clients from proceeding with an EPA,” said Hammond.

He added that the requirement to register the creation of the EPA under section 68 of the act also seemed to be a disincentivising measure, particularly when it came to having to notify all children over the age of 18.

“For some clients, the legislative requirements to register the EPA at the time of its creation, together with having to seek approval from the Director of the Decision Support Service for any amendments in the short-term, are also off-putting.”

Solicitors ‘caught in the middle’

“Many clients, and solicitors assisting them, have found navigating the new online DSS portal very difficult. There is work to be done in enabling the legal practitioner providing the requisite legal statement to be able so to do, confident that they are fulfilling their obligations under the statute.

“I suspect that a potential outcome down the line is going to be the departure of solicitors from this process, either voluntarily or through a statute. My own musing is that we could end up with a situation where the creation of an EPA becomes somewhat like registering a birth, death or marriage.

“Clients come to us thinking an EPA will be easy and simple because they’re listening to the ads. But then, talking to a solicitor, they find out it is neither easy nor simple.”

Hammond highlighted section 60(1)(b) of the 2015 act to illustrate his point.

This requires a practitioner, after interviewing the donor and making any necessary enquiries, to provide a legal statement that he or she:

• Is satisfied that the donor understands the implications of creating the power,
• Is satisfied that the donor is aware that he or she may vary or revoke the power prior to its registration, and
• Has no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure.

Ticking the boxes

“There are five separate hoops the solicitor needs to jump through in order to be satisfied to provide the legal statement. To my mind, the only way you’re ever going to tick all five of those boxes as a solicitor is to be involved in the process from start to finish,” noted Hammond.

“I would be particularly concerned where a client arrives at a legal firm seeking purely the legal statement, with the remainder of the process having been completed elsewhere. It’s going to be very difficult in such circumstances for the solicitor to make sure there has been no fraud or undue pressure.

“In addition, it’s reasonable to anticipate that a court is going to impute a very high professional standard and duty of care on the part of the solicitor when carrying out any work in relation to an EPA. Therefore, it is so important to be conscious that what might appear as a low bar in the statute will undoubtedly get turned into a high bar if there’s ever a challenge before a court.”

Hammond is a member of the Council of the Law Society, which he said had been engaging at various levels from the Decision Support Service upwards to bring the issues raised at the webinar to its attention.