In an effort to explain why many solicitors are unwilling to involve themselves in the EPA process, I have pasted below an extract from our standard engagement letter. This letter is itself a work in progress, in a shifting environment, so please do not take as being the 'last word'.
TLDR: If a solicitor is going to be happy to issue a Statement of Legal Practitioner, the bare minimum that most practitioners will require is that the client (i.e. the person signing the Enduring Power of Attorney, not their helpful and well-meaning child) has come in to discuss with the solicitor before starting the process. If the client instructs the solicitor in detail as to what they wish to do, and if they then go and do it, the solicitor should be reasonably happy. Most solicitors (myself included) will not be happy to sign off on a fait accompli document presented to us by the client.
REASONS WHY WE WILL NOT ACT IN RELATION TO AN ENDURING POWER OF ATTORNEY WHICH HAS BEEN PREPARED ON A DIY BASIS
In our experience, the process of drafting of an EPA is the best time to receive legal advice and assistance. This is because the questions and answers which arise during the drafting process itself are precisely the questions and answers that will satisfy us that the EPA document fully reflects your informed wishes and choices.
It is our considered opinion that the best way to explain the scope, purpose and implications of an EPA is to participate with you in drafting it.
By participating in this drafting process with you, we will be able to issue a Statement From A Legal Practitioner in support of your EPA without any difficulty.
Although the DSS process envisages that you could in theory come to us for a Legal Practitioner Statement after you have already prepared your own EPA, this is not a service which we offer.
In our experience, questioning you about something which you have prepared earlier is just not the same as dealing with your questions and giving explanations during the drafting process itself.
This is not just a matter of insisting that things be done in a way which is convenient or profitable for us. There is sound reasoning behind our position: Firstly, you have the issue of what is called commitment bias: This is the psychological term which describes the perfectly ordinary fact that once somebody has committed to a task, they do not like to unpick or undo their own work. If someone has already prepared a document, then they are already personally invested in that document as it stands, even if it does not accurately reflect what they would have done with the benefit of independent expert advice beforehand. To put the matter plainly we do not wish to be put in a position of trying to seek out and overturn your commitment bias.
Secondly, there is the issue of undue influence (though the term used by the DSS in their guidance is “undue pressure”).
Our job is to guide you toward making your own decisions and we take that role very seriously. To do this, we explain your choices in a neutral way, asking open questions and helping you to answers which reflect your wishes and not ours. Our job is to ensure that you make informed choices, and they must be your choices.
We are not interested in trying to interrogate and unpick any decisions that you may have already made with the benefit of advice or commentary from other people (no matter how well-intentioned) and before obtaining independent legal advice.
Undue influence does not necessarily involve someone with nefarious intentions: it might be as simple as somebody asking you to finish up in a hurry because they need to use the computer – the outcome being a rushed document that does not reflect the careful consideration that an EPA should receive from you.
In short, we think that it presents an unacceptable risk (both to you and to this office) to have you prepare the Enduring Power of Attorney yourself as a DIY document and to then ask us to certify the outcome.
For these reasons we have grave reservations about providing a Statement From A Legal Practitioner in support of any document that has been prepared before consultation with us.
Accordingly, it is our policy that we will provide a Statement Of Legal Practitioner in support of an Enduring Power Of Attorney only if we have participated with you in the process of drafting the document itself.
We will deviate from this policy only in the most exceptional circumstances.
EXCERPT FROM DSS GUIDANCE TO SOLICITORS
Applications to register, vary, revoke, and rescind an enduring power of attorney must be accompanied by a statement from a legal practitioner. A donor may ask you, as the legal practitioner, to complete these statements.
Before doing so, you must interview the donor and make any necessary enquiries. The statement from the legal practitioner must specify that you:
• are satisfied that the donor understands the implications of creating, varying, revoking, or rescinding the enduring power of attorney;
• where relevant, are satisfied that the donor is aware that they may amend or revoke the enduring power of attorney prior to its registration and prior to its notification; and
• have no reason to believe that the instrument is being created, varied, revoked, or rescinded by the donor as a result of fraud, coercion, or undue pressure.
It is therefore important for you, to fully explain the scope, purpose, and implications of an enduring power of attorney and ensure that the donor understands these.
You should make and record full and detailed notes for reference should any query arise, as described in section 2.7. The Decision Support Service provides templates for statements required to accompany an application in respect of an enduring power of attorney.