Enduring Power of Attorney

Legal Capacity Before Making a Will or Enduring Power of Attorney The 2024 amendment to the Legal Capacity and Guardianship Regulations (Expert Opinions) sets out what an expert opinion must include: 1. Expert's details 2. Examinee's details 3. Purpose of the examination, the document being assessed, and the matters under review 4. Whether a previous examination was conducted — at whose initiative, who conducted it, when, where, and in what language 5. Examination details: date, location, language, and if conducted through an interpreter — the interpreter's details 6. Who initiated the examination and who was present 7. Adjustments required and provided in order to conduct the examination 8. The examinee's medical background and supporting documentation 9. Examination findings and the expert's impressions 10. Professional conclusions, including a specific reference to the capacity question at issue In other words, the expert is not merely required to establish a medical condition — they must detail the examination process, the data relied upon, and the professional conclusion regarding the appointer's capacity. The four guiding criteria for assessing capacity: • Understanding — the ability to comprehend the information provided • Appreciation — the ability to assess the relevance of that information to one's own situation • Reasoning — the ability to use the information to reach a logical decision • Expression — the ability to communicate that decision Important: if a case reaches court, the judge will not rely solely on the family doctor's opinion. The court will request the expert opinion from the specialist who examined the appointer before the power of attorney was signed — and may also call the social worker who worked with the appointer, since a social worker conducts home visits over time and can testify to the appointer's ongoing condition, whereas the specialist can only testify to the single examination session. For guidance on preparing an enduring power of attorney correctly — contact us.