Wills and EPAs – Assisted Decision-Making (Capacity) Act 2015
The Probate, Administrations and Trusts Committee has been inundated with queries from colleagues regarding the .
It is important to note that at this point in time the new act has not yet been commenced and does not have any impact on current professional practice.
A key feature of the new act is the introduction of a functional test for capacity. It is worth noting that the long-established test for testamentary capacity arising from (1870) is, in fact, already a functional test. Moreover, section 140 of the new act specifically confirms that the new act does not alter or amend the law relating to capacity to make a will.
In respect of enduring powers of attorney, the new act will make significant changes when commenced. Section 79 of the act requires that secondary legislation be produced to prescribe, among other things, the form of the new instrument to create an enduring power of attorney, and the form of a report to be submitted by an attorney appointed after the commencement of the new act to a director of the Decision Support Service to be created under the new act. Naturally, this secondary legislation will need to be reviewed in conjunction with the new act to assess fully the impact that these changes will have in professional practice.
A number of the queries received relate to whether enduring powers of attorney currently being drafted and executed should contain reference to the new act, particularly its reporting provisions. At its meeting on 1 June 2016, the members of the committee in attendance were unanimously of the view that until a commencement order has been issued in respect of the new act, it is not appropriate to include reference to the new act. Its provisions may never be commenced, or may be commenced in stages, and/or may not be commenced for a considerable period of time. Therefore, it is imprudent to include references in current enduring powers of attorney to the new act, particularly the reporting provisions, in circumstances where a solicitor is not able to advise the client on the various forms yet to be issued, and when or whether the new act will come into effect.
It has always been the case that an enduring power of attorney may contain conditions to attach to the exercise of the power conferred therein by an attorney. Solicitors ought to consider with their clients whether any suitable conditions (including oversight and reporting) should be incorporated when drafting an enduring power of attorney, which though in a format derived from a statutory instrument, should nonetheless be bespoke for each client.