– There may be many who use it without criticism – E24

– There has been a boom in the number of future proxies since I started in 2016, says attorney Susanna Holth at Codex Advokat. The company has one of the most important family and inheritance law departments in the country.

It refers to future powers as a useful document, which facilitates the safeguarding of the principal’s interests.

At the same time, very few people think about the great potential downside of the scheme, Holth notes.

– So I think you have written an important article that should almost be a study program for lawyers, he says.

E24 wrote last weekend about a woman in her 80s who was isolated from several of the children after she signed on to a future proxy and other powers.

Future Powers were introduced in 2013 as a private law alternative to guardianship. Nobody controls the scheme and nobody knows how many such agreements exist.

1100 future powers

E24 has asked 67 law firms in Oslo, Trondheim, Bergen, Stavanger, Kristiansand and Tromsø about how many they have created for their clients.

E24 has received responses from 46 companies. How good an overview law firms have varies.

16 has not had the opportunity to give figures. The remaining 30 have provided exact figures or rough estimates of the number of future authorizations created since 2013, when the plan went into effect. Some have been limited to just the last few years.

In total, the 30 law firms say they have contributed to more than 1,100 future authorizations.

– I think the scheme is controlled

Codex is one of three Oslo law firms that claim to have created more than 100 future representatives since 2013.

Your summary shows that demand is growing strongly. The increase from 6 in 2018 to 74 in 2020 corresponds to a jump of around 1,100 percent.

Susanna Holth points out that the scheme is still perceived as new and that there are several misconceptions about it. Not only with ordinary people, but also with lawyers.

– In one course, there was a speaker who said that the county governor has a system to verify future authorizations, which is not true. There is a misconception that there is an oversight function with the scheme, that agreements must be confirmed by the county governor in order to take effect.

Confirmation is optional, but required when selling a property and by multiple banks. However, a duly authorized future power of attorney can continue to be used regardless of confirmation. Confirmation is not a validity requirement.

– And there may be many who use future powers uncritically. Although the county governor has said that there are errors in the document, there are banks that still accept the authorization. In the last cases I have had, no bank has asked for confirmation. That’s a problem, says Susanna Holth.

Thinking about lawyers more often should be essential

The family lawyer points out that the scheme of future powers is based almost entirely on the confidence that the person appointed as his lawyer, usually a child, exercises the position in accordance with the interests of the principal.

– The lawyer usually does that. At the same time, there will always be the risk that someone will take advantage of the situation, both in future authorizations and in other legal agreements. So it can be a problem that you have no control over how they are designed, Holth says.

She believes that the Danish solution sounds sensible, in which one must appear in court within six months of the agreement being established, to ensure that the person has their full five when the future power of attorney is established.

– As a lawyer, do you also have any responsibilities here?

– I cannot make a medical assessment of whether a person is competent to give consent, but I have had several cases where I am not sure how much the person who comes to us knows and understands. So I always ask for a medical certificate. I think your article should serve as an awareness that a lawyer should be critical more often and assess if there is something that makes one unsure of whether he fully understands what the future power of attorney does and means.

– When one suspects that a client is approaching a situation in which the person cannot look after their interests, then I believe that lawyers have an independent duty to prevent someone from being exploited.

Two different customer groups

Ida Stavnes Høisæther, a lawyer and partner at the Hansson law firm, is another who has experience taking power in the future.

She says that several clients come to them with their future power of attorney composed of themselves to find out if it is okay.

– We often have to redo it because it is not suitable. Future powers of attorney are a very useful tool, but they must be used correctly, he says.

Stavnes Høisæther says that there are mainly two different groups for which they create a future power of attorney. In the first group, people are usually over 60 years old and turn to the lawyer for help in planning transmission to the next generation.

– Some have not heard of future authorizations before we asked them if they want to do this too.

The other group is usually older and only creates a power in the future.

– The older the person, the more likely they are to be characterized by age-related dementia, which is why we often recommend obtaining a medical statement in advance. Lawyers can seldom regard the physician as a physician.

– We focus on providing good information to the person creating the power and making it clear that there is no guarantee that they can be abused.

Has a sense of the Danish solution

A 2018 survey of future proxies that had been sent to the county governor for confirmation shows that the average age of the director was 82 years old when the agreement was established and 83 years old when the proxies were confirmed.

– When I read those numbers there, I think it’s a shame, says Susanna Holth.

She confirms that those who turn to the Codex Advokat just to create a power in the future are often that age.

– If you create a future power of attorney when you are 82 and then it takes effect when you are 83 … It is not the case that you are completely fine one day and then insane the next.

– Could there have been more public control while safeguarding freedom of choice and the other positive aspects of future powers of attorney?

– Yes, but it would require a lot of resources. With regard to custody, the courts have a system of wills. It works very well so I think it would have been very useful with a similar scheme for future authorizations.

– And then a medical certificate might be required when the deal is made or you have to appear in person at the county governor, a kind of Danish model.