New Enduring Powers of Attorney in Sweden07 April 2017
By execution of a regular Power of Attorney, a Donor may appoint an Attorney to act on his/her behalf in certain matters, to include the execution of legal documentation. For the Attorney to validly act on behalf of the Donor, the Donor must first have the necessary legal capacity to act. In the event the Donor loses legal capacity, then the regular Power of Attorney ceases to be valid. It is therefore not possible to use a regular Power of Attorney in order to deal with a Donor’s personal and financial affairs, should the Donor lose legal capacity.
A new legal tool called Framtidsfullmakt (Enduring Power of Attorney) will soon be introduced into Swedish Law, whereby a Donor can execute a form of Power of Attorney which will endure, and continue to have effect, beyond the point when the Donor loses legal capacity. This will assist those who wish to ensure that in the event they lose capacity the Attorney’s appoint by them will have the power to take key decisions and deal with their assets for their benefit. The Enduring Power of Attorney will compliment the regular Power of Attorney and will strengthen a Donor’s opportunities to choose who will make decisions for them in the future. The institution will also become an alternative to the Swedish legislation on special representatives and trustees.
For an Enduring Power of Attorney to be validly executed by a Donor the proposed Swedish legislation sets out a number of requirements. The central requirements are that the Donor has, at the date of execution:
(i) the ability to take of their affairs (this is defined as having “decision making ability”) and
(ii) have reached the age of majority (18 years old).
Unlike other jurisdictions the proposed Swedish legislation does not have a requirement that the Donor submits a Declaration on a state of health/legal capacity at the time of execution of the Enduring Power of Attorney. In the event a third party challenges the validity of the execution of the Enduring Power of Attorney the onus is on the challenger to provide evidence that the Donor did not have the requisite capacity at the date of execution- the legal presumption is therefore in favour of the Donor’s capacity.
The proposed legislation also sets out additional formal requirements; the Enduring Power of Attorney must be in writing, signed and witnessed by two people who are simultaneously present in the presence of the Donor and of each other. The document must be clear that it is an Enduring Power of Attorney and specify who will act as the Attorney (otherwise called the Trustee) indicating what matters are entrusted to the Attorney, the extent of their powers and other such matters. Decisions involving health care issues and certain issues which are specifically personal cannot be dealt with under the Future Power of Attorney.
The new Law in this area is proposed to take effect on 1 July 2017 and at the time of writing, we wait to see if any further amendments or proposals are made to the legislation before it is enacted.
For more information, contact:
Biträdande jurist, Stockholm
t: +46 8 56 26 90 01