This is the second of a series of articles that will examine the building process behind a document automation solution. The first article in the series is here.
Now that we have identified the documents we need to build, and have a rough idea of the data points we will need to collect to build those documents, the next step is to examine the documents (and the applicable procedures laid down by the legislation, court rules, and practitioner handbooks) in more detail to see where problems are going to arise.
Letter to Registered Medical Practitioner
In practice a solicitor is not going to commence the ‘full-blown’ registration process until a medical certificate has been obtained. I have therefore decided to leave the ‘Letter to Registered Medical Practitioner’ outside the automation process, and I will instead provide a free template letter for download (incorporating the recommendations contained in the Law Society Guidelines and also the requirements of the High Court Practice Direction of 23 October 2020). [The remainder of this section of the article relates to the recommendations and requirements. Jump to the next heading if you have no interest!]
The 2016 Law Society Guidelines for Solicitors (Enduring Powers of Attorney) provide, at paragraph 4.2.1:
“A solicitor, on receiving instructions to register an EPA, should personally satisfy him/herself that the donor is, or is becoming, incapable of managing his/her affairs understanding that the assessment is a legal test and not a medical test. The solicitor should ensure that in making this assessment the donor’s capacity is construed functionally as is required in common law and in line with national policy guidelines.”
The 2016 Guidelines also provide, at paragraph 4.2.2(i), that a solicitor should:
“Obtain a medical certificate from a registered medical practitioner to the effect that the donor is, or where appropriate, is becoming incapable, by reason of a mental condition, of managing and administering his/her own property and affairs. The solicitor should write to the registered medical practitioner explaining the necessity to consider the issues from a functional perspective making reference to the common law assessment of capacity and the national policy guidelines. (In particular the registered medical practitioner should be referred to the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners 8th edition 2016).”
One of the first things to be done, then, is to write to a registered medical practitioner requesting a medical certificate and giving the information outlined above. That letter needs to follow the Law Society Guidelines (above) and it would be useful to the medical practitioner if the letter also set out the requirements laid down by the President of the High Court in the Practice Direction of 23 October 2020.
Notice of Intention to Apply for Registration
The Powers of Attorney Act 1996, at Schedule 1 Part 2, mandates that Notices of Intention to Apply for Registration (hereinafter ‘Notices’) shall be “in the prescribed form or in like form”, and defines ‘prescribed’ as “prescribed by regulations which may be made by the Minister“.
The Minister has prescribed the form of the Notices in S.I. 196/1996 (See Regulation No. 9, and the Fourth Schedule).
The prescribed form requires each Notice, on its face, to be addressed to the recipient. That means that it is not enough to generate one Notice, we must instead generate a specific Notice for each person to whom it is to be sent.
In addition, there is a statement (paragraph 3) that need only be included in the Notice that is given to the Donor, and need not be included in the Notice given to the other people.
To whom must Notice be given?
The 1996 Act, at Schedule 1, Part 1, requires that Notice be given to:
- The Donor
- The Notice Parties (unless all are deceased, mentally incapable, or cannot be located*)
- Non-Applicant Attorneys (if any)
- The Registrar of Wards of Court
[*In this situation the Act sets out a hierarchy of people to whom notice must be given. Note that the hierarchy was amended by Sections 104(4), 205(a) and 205(b) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010]
How must Notice be given?
Section 4 of the 1996 Act says ‘notice’ means ‘notice in writing’.
Schedule 1 of the 1996 Act allows for notice to be given by registered pre-paid post (but it could also be delivered personally).
It is assumed that the notice will be sent with a covering letter. Accordingly we will need to generate several covering letters to go out to each of these individuals. The letters will need to contain the recipient’s name and address, the solicitor’s file reference, the date, a subject line referencing the Donor’s name, a salutation (Dear [name]), and some content.
Individual solicitors can arrange bespoke content for their letters (by one-to-one arrangement with smartlegal) but for now we will generate letters that say: “We are instructed by [Applicant Attorneys] who intend[s] to apply to Register the Enduring Power of Attorney of [Donor Name] executed on [Date of Execution]. We enclose Notice of Intention to Apply for Registration, for your attention.”
That content will be fine for everybody other than the Donor. For the letter to the Donor we will tweak the content slightly: “We are instructed by [Applicant Attorneys] who intend[s] to apply to Register the Enduring Power of Attorney that you executed on [Date of Execution]. We enclose Notice of Intention to Apply for Registration, for your attention.”
Affidavit of Service of Notices
S.I. 66/2000 requires that an Affidavit of Service of the Notices of Intention to Apply for Registration be appended to the Application for Registration of the EPA.
The Affidavit of Service will be sworn by the solicitor and will refer to the dates and methods of service of the various notices. These are new ‘data points’ that I have not referenced previously. I have a number of options here:
- Collect the data points when the documents are being generated. This will involve asking the user what date the Notices are going to be served on, and the method that will be used.
- Don’t collect the data points. I will leave blank spaces in the generated documents that can be filled in by the solicitor after service has been effected.
This becomes a bit of a balancing act. Going with Option 1 means the solicitor has more questions to answer when filling out the form, so it takes longer. The solicitor may not know, at that point, the date of service or the method of service, so the additional questions could cause annoyance. Going with Option 2 means leaving blanks on the letters (the date and method of service) and the Affidavit of Service (the dates and methods of service) and these blanks will take some time to fill in at a later stage. Again, the process takes longer and efficiency is lost.
The best option could be to include a question in the form: “Do you wish to specify dates and methods of service of the Notices of Intention to Apply for Registration?”. If the solicitor says ‘yes’, the data is collected. If the solicitor says ‘no’, the data is not collected and blanks are included in the generated documents.
The Application for Registration
Solicitors need to generate only one Application for Registration which can then be signed by the Applicant Attorney(s). Copies of the signed application can then be made.
Service of Application for Registration
Order 129 of the Rules of the Superior Courts requires that the application be served on the Donor and on all other parties who either have or should have received Notice of Intention to Apply for Registration. The Donor must be served personally, the other parties may be served by registered pre-paid post, personal service, or such substituted service as the Court may allow on foot of an ex parte application.
As with the service of the Notice of Intention to Apply for Registration, it is assumed that the application will be sent with a covering letter. Accordingly we will need to generate several covering letters to go out to each of these individuals. The letters will need to contain the recipient’s name and address, the solicitor’s file reference, the date, a subject line referencing the Donor’s name, a salutation (Dear [name]), and some content.
Individual solicitors can arrange bespoke content for their letters (by one-to-one arrangement with smartlegal) but for now we will generate letters that say: “We are instructed by [Applicant Attorneys] who [is/are] applying to Register the Enduring Power of Attorney of [Donor Name] executed on [Date of Execution]. We enclose copy Application for Registration, for your attention.”
That content will be fine for everybody other than the Donor. For the letter to the Donor we will tweak the content slightly: “We are instructed by [Applicant Attorneys] who [is/are] applying to Register the Enduring Power of Attorney that you executed on [Date of Execution]. We enclose copy Application for Registration, for your attention.”
When the Application for Registration is sent to the Registrar of Wards of Court, it needs to be accompanied by an Affidavit of Service of the Application for Registration. In practice therefore one serves the Application for Registration on all parties (other than the Registrar), prepares an Affidavit of Service, and then submits the Application to the Registrar together with supporting documentation (including the Affidavit of Service).
Affidavit of Service of Application
Order 129 of the Rules of the Superior Courts says, in a roundabout way, that service of notices must be proved to the satisfaction of the court (see Order 129 Rule 3(4)).
As with our previous Affidavit of Service, we are faced with ‘data points’ that are not yet defined. Unlike our previous Affidavit of Service, it will be almost impossible for the solicitor to state the dates of service with any degree of certainty when building the documents. Accordingly the best solution here is to leave blanks, to be filled in at a later stage.
Order 129 of the Rules of the Superior Courts provides that the Application for Registration “shall be grounded upon the affidavit of the attorney or attorneys seeking such registration” (Rule 3(1)) and sets out the information that must be contained in the Grounding Affidavit (Rule 3(2)).
This should be a fairly straightfoward (though time-consuming) template to prepare.
A number of issues have cropped up as I worked through the templates, and these issues will be relevant to (a) the data points that need to be collected, and (b) the sequence in which that information is collected. Some examples:
- The Donor’s Gender is a relevant factor, unless we want to repeatedly refer to the Donor with ‘his/her’, ‘him/her’, and such manner of indeterminate pronouns. By collecting the Donor’s gender as a data point we can then conditionally format the generated documents to contain the correct gender-specific pronouns.
- The Grounding Affidavit could be sworn by one Attorney or multiple Attorneys. We need to factor that in. This will impact on whether singular or plural pronouns (I/we, my/our) are used and will impact on the nature of the Jurat to be used on the Affidavit.
- There may be non-Applicant Attorney(s) who need to be notified of the application. If there are, we need to generate additional Notice documents, we need to reference those additional documents in the Application for Registration and the Grounding Affidavit, and we need to generate additional covering letters. If there are not, we don’t.
- The relationship of the Notice Parties to the Donor needs to be stated in the Application for Registration. We will collect this information as a data point.
- The content of the Grounding Affidavit, the Affidavits of Service, the Application for Registration, and the number of covering letters required, will change depending on whether we know or don’t know an individual Notice Party’s current address.
- The content of the Grounding Affidavit will change depending on whether the underlying EPA is a Full EPA (First Schedule) or in respect of Care Decisions only (Second Schedule). We will collect this information as a data point.
- The Grounding Affidavit must contain an averment as to the manner in which the EPA came into the possession of the attorney(s). This may (or may not) be too difficult to build into the system, and might be better left as a blank space in the Affidavit for the user to fill in based on instructions.
Next step is to start building the form that will collect the ‘data points’. The form will need to accommodate a wide variety of situations but we will try and build it so that it ‘intelligently’ responds to the information that is fed into it. Also, although the vast majority of EPAs have one or two Attorneys and two Notice Parties, our form (and generated documentation) needs to be able to accommodate an unlimited number of Attorneys, Notice Parties, and non-Applicant Attorneys. That is the next challenge…
The next part of this article is available here.