County Governor Wants Law Amendment to Prevent Misuse of Future Powers of Attorney – E24

– For the scheme to be credible and a good and safe alternative, improvements should be considered, Eldbjørg Sande, director of the county governor’s guardianship department in Oslo and Viken, tells E24.

Sande himself was secretary of the guardianship committee and co-author of the commentary on the previous and current guardianship law.

For several years, the director of the department has warned that the deficiencies of the law pose a danger to legal certainty.

The future powers were introduced in Norway in 2013. The scheme is a private law alternative to guardianship, which will make it easier for people to decide for themselves who will take care of you when you can no longer do it yourself.

No one knows how many future authorizations have been created in Norway.

There is no public control of the plan, but the county governor can confirm that the agreement has gone into effect. This happens when the person to whom the power of attorney is applied can no longer look out for their own interests.

– This one with future powers may have lived a little of his own life, and to a small extent it has been problematized, also in the media. Everyone should be interested in having such a good private law system that it becomes a real alternative to guardianship, says Eldbjørg Sande.

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Uncertainty around understanding

E24 has reviewed 568 cases in which county governors have chosen not to confirm a future power of attorney. In 339 of the cases, power was presented prematurely. In 126 of the cases, the county governors lack the required documentation. In 60 of the cases there are problems with the witnesses, and in 64 of the cases the county governor believes that the director has not understood the agreement or is not sure what the person has understood.

Throughout the year, E24 has covered several cases where older women have signed future authorizations and other agreements that they probably did not understand the scope of:

The case of the woman in her 90s is now being investigated by the police. An attorney and a former real estate agent are charged with gross financial infidelity and complicity in this. Both deny criminal guilt.

Fear of the rule of law

In June 2016, Sande, on behalf of the county governor, sent a letter to the Ministry of Justice entitled: “Challenges related to the establishment and use of future power.”

In the letter, the county governor wrote that third parties to whom the power of attorney will be used have no confidence in future powers of attorney. This makes it difficult to fulfill the principal’s wishes if the power of attorney has not been confirmed.

The county governor believes that the lack of confidence in future powers must be seen in relation to the fact that many are created after the director has received a diagnosis, often a diagnosis of dementia.

“The Oslo and Akershus County Governor experiences that it may subsequently be difficult to determine whether the person had the necessary understanding of the provision at the time of establishment or not.”

Additionally, the county governor believes it is unfortunate that there are no stricter requirements on who can testify in the future power of attorney.

By law, the attorney-in-fact, spouse, partner, parents, children, or grandchildren of the attorney-in-fact cannot be witnesses. There are no restrictions for siblings:

“So far, there have been several examples of future powers that mainly regulate the distribution of inheritance advances where one of the living heirs is listed as proxy and other living heirs, who have a clear self-interest, have signed as witnesses.”

“The Oslo and Akershus county governor believes that the provision does not safeguard the director’s legal certainty to a sufficient degree.”

“Clearly contrary to the purpose of the Guardianship Law”

Sande notes in the letter that the Guardianship Act will be a protection for vulnerable people, and that the Oslo County Governor and Viken in practice conduct more thorough investigations in cases related to future powers than the Act requires:

“This is to ensure that the right to create a power of attorney in the future is not used to try to circumvent the rules on guardianship and, in particular, the rules on advances in inheritance, and thus safeguard the legal security of this group” .

They are concerned that regulations could put people in the border area between being competent to give consent and not being able to do so being exposed to pressure and influence from others.

“This is, as we see it, clearly contrary to the purpose of the Guardianship Law.”

Thanks for the input

The county governor’s conclusion in 2016 was that a future power of attorney is not a complete alternative to guardianship, and that there was too much scope for abuse of the scheme.

They requested that the witness section be changed, so that the requirements are the same as when creating a will, where people with their own interest in power cannot be witnesses. Additionally, the county governor wanted a requirement for a medical certificate showing the director’s mental capacity to be introduced when the deal is entered into.

The Ministry of Justice responded that it appreciated the contributions and that they were useful in future work on the Guardianship Law. The law was not changed.

– It was assessed in 2016 that the specific letter from the county governor did not provide a basis for initiating a legislative amendment project at that time, says Secretary of State Lars Jacob Hiim (H) at the Ministry of Justice.

Hiim further says the ministry has received little information about abuse of the scheme, beyond the county governor’s investigation.

– But such a private law scheme will be more vulnerable to abuse than a public law guardianship scheme. We closely monitor how it is used in light of the need for adjustments.

Supervised

To reduce the possibility of abuse, the Oslo County Governor and Viken enforced stricter requirements for witnesses than those required by law.

This came to an end last year, after the State Civil Law Administration (SRF), which is the central guardianship authority, oversaw the county governor.

In December 2018, SRF received a report of concern, through the Ministry of Justice. The message came after the county governor rejected a request for confirmation of a future power of attorney.

According to the audit report, it is stated that the audit, in particular, “will aim to verify that the tasks are carried out in accordance with the law and regulations, and that a uniform practice that creates legal certainty and legal equality is guaranteed.”

In the future power that the county governor rejected, the power brothers had signed as witnesses.

“On the basis that the county governor considers power to be ‘substantially … very similar to favoritism by will,’ the county governor believes that such a circle of people should be interpreted broadly, to also include the brothers ‘when they have a clear self-interest in future power.’

SRF noted that the county governor cannot refuse to confirm a proxy because of its content.

In his comments on the report, the county governor noted that a change in practice will have unfortunate consequences in the form of risk of abuse.

SRF concludes by writing: “The State Civil Law Administration understands the county governor’s concern about the impartiality of witnesses and the danger of abuse of the future power of attorney scheme, but assumes that this has been evaluated by the legislature. Therefore, the county governor must comply with the law as it stands today. “

– We have had doubts about whether we went too far in our practice regarding witnesses. At the same time, we explained our understanding of the law and why, in individual cases, we went further by rejecting confirmation. When we received comments that it is not right, we of course identified with them, but we also expressed that we were concerned about the consequences of a change in understanding of the law, Eldbjørg Sande in the county governor tells E24 today.

I still want changes

The department director continues to demand changes in the law:

– Widening the circle for those who cannot be witnesses, we believe that it is an improvement of the scheme. That is perhaps the most important thing. We think practice shows that stricter rules are needed about who can be witnesses, he says.

In addition, the county governor believes that there should be a requirement for a medical certificate at the time of establishment, or other form of verification that the director has understood the agreement.

– The main problem is that sometimes we are not sure that the principal has understood the meaning of the provisions that regulate the power. In particular, many go out of their way to distribute new funds. In many cases, there are no provisions in the power of attorney that there must be funds for the person granting the power of attorney. Maybe that should be a requirement.

Alternatively, they want an opportunity to be able to do an assessment of whether the power of attorney is valid or a registration scheme. They experience that many who create a future power of attorney believe that it should be presented for registration and believe that it would be natural for there to be a control.

Sande emphasizes that he believes the scheme is a good alternative for those who do not want public intervention, but need an adjustment.

– Inputs have been received and provided an understanding of points of view, but the processes of change in legislation take time. We don’t know exactly how to work with this now, but we hope there is an understanding in the Justice Ministry that there is a need for changes, says Sande.

The Ministry of Justice states that they have regular contact with the State Administration of Civil Law and the offices of the county governor, and thus receive information about the plan.

– The Ministry of Justice and Emergency Preparedness works continuously with various amendments to the Guardianship Law; It has already been changed in some points, several questions have been consulted, many questions are for internal evaluation, says Secretary of State Lars Jacob Hiim.

Note: An employee of the Verdens Gang, who is the majority owner of E24, is associated with the circle around the woman in the 90’s mentioned in this case.