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Enduring Powers Of Attorney
Practical legal advice and assistance
Amorys Solicitors LLP can help you with all aspects of creating a lasting power of attorney
An Enduring Power of Attorney (EPA) is a legal document which allows you to appoint someone of your choice to control your affairs should you become mentally incapacitated (following a stroke, acquired brain injury, serious illness or the onset of Alzheimer’s Disease or a similar condition). The EPA instrument, which is legally binding, provides clear directions by the client, while they are still of sound mind, as to how they wish their affairs, financial and otherwise, to be dealt with and to whom the power of attorney is given (e.g. a close relative or family friend). Such matters include whether a family home should be sold, where they should live etc.
This power only comes into effect in the event that the client is rendered incapable of looking after his/her own affairs at which time the appointed attorney can (subject to certain formalities) immediately take over such affairs, cutting out all the difficulties which can otherwise arise at such times. It will allow you to avoid a Ward of Court application being made for you in the future which could be a costly and time-consuming process for your friends or family.
At Amorys Solicitors LLP our experienced solicitors will give you the legal advice required and will guide you through the process of setting up an Enduring Power of Attorney.
What Is An Enduring Power Of Attorney?
An enduring power of attorney (“an EPA”) is a legal document by which the donor states that the attorney will in the future have the power to act on the donor’s behalf if the donor becomes unable or incapable mentally of looking after his or her affairs. An EPA only becomes effective once a medical practitioner certifies the donor as not having mental capacity and the EPA is subsequently registered in the High Court. It comes to an end on the death of the donor. It can also be revoked during the donor’s lifetime.
An EPA may be granted over personal care decisions and/or financial affairs and it may be subject to particular restrictions or conditions. However, unduly restrictive conditions contained in the EPA may lead to the donor being made a Ward of Court which is a time-consuming process and could be costly.
Why Is An Epa Useful?
An EPA will allow you to appoint someone of your choice to control your affairs should you become mentally incapacitated.
It will allow you to avoid a Ward of Court application being made for you in the future. If you are made a Ward of Court, the court has power to make decisions in relation to your property and personal care in your best interests and is similar to an EPA in that respect. However, the process leading to making you a Ward of Court could be costly and would take more time to obtain than to register an EPA.
Advance Healthcare Directives
An EPA should not be confused with a “living will” or an Advance Healthcare Directive. An Advance Healthcare Directive allows you to put in writing what medical and surgical treatment(s) you would not want in the future in terms of your healthcare in the event that you may no longer be able to communicate what your wishes are. The Assisted Decision-Making Capacity Act 2015 which provides for the making of Advance Healthcare Directives has been enacted however the Act has not yet been commenced. It is possible to make an Advance Healthcare Directive even though the Act has not yet been commenced.
Frequently Asked Questions
If I am mentally incapable of looking after my finances, my wife would automatically be able to do this, wouldn’t she? What about my next of kin?
Many people are under the impression that their husband or wife would automatically be able to deal with their bank accounts, pensions, investments (including shares in any business you may own) and savings if they become mentally incapable but this simply is not the case. If you have not given an Enduring Power of Attorney to your husband or your wife then they will not have authority to sign on your behalf without an order of the court.
Equally the law does not recognise the phrase ‘next of kin’ and they would not have authority to act for you unless you appoint them or they are appointed by a court under wardship proceedings as described above.
Must I give my attorney power over all my affairs both personal and financial?
No, you decide which powers your attorney will have over your affairs. With an EPA you may give your attorney(s) a general authority to act for you in relation to your affairs (both personal and financial). You may include an authority to the attorney(s) to make personal care decisions only on your behalf. These do not usually include medical decisions. At all times decisions must be made in your best interests.
You can make the EPA subject to particular restrictions or conditions. However, unduly restrictive conditions contained in the EPA may yet require the donor to be made a Ward of Court which is a time consuming process and could be costly.
What happens if I do not execute an Enduring Power of Attorney?
In order for your family to be able to deal with your financial affairs at a time when you are of unsound mind, it would be necessary to make an application for a member of your family to be appointed to your committee, once you have been made a ward of court. This may not necessarily be the person you would choose to act in this capacity, particularly if you are unmarried or separated.
If you do not execute a sufficiently unrestrictive Enduring Power of Attorney, your family might not be able to pay bills out of your bank account on your behalf or to sell the property to fund your maintenance and upkeep. Your family members or friends might have to spend a lot of money on your behalf as a result.
This could result in a situation where you are in substantial debt to your family members during your lifetime.
At the same time, despite being substantially indebted to your family members it could mean that you could fail a means test for social welfare payments to which you would be entitled. It could also mean that you would fail a means test to qualify under a government-funded Nursing Home Scheme.
Is it possible to object to the registration of an EPA?
The donor and two notice parties (usually the donor’s next of kin but not your attorney/s) have five weeks from the date they receive a notification of registration of the EPA from the attorney/s, to lodge an objection with the Office of the Wards of Court.
What happens if there are concerns over how an attorney uses the power granted to them?
The donor or another interested person who has a concern about the operation of the EPA by an attorney, can write an affidavit (which is a written statement describing a situation, sworn before a legal officer) to the Office of Wards of Court about this concern and could apply to the court for an Order directing how an attorney manages or disposes of the donor’s property. An attorney can also be obliged by a Court to keep records and accounts of all financial transactions in relation to the donor’s assets.
Can I wait until I become older before putting an Enduring Power of Attorney in place?
We recommend that you put in place an Enduring Power of Attorney at the earliest opportunity because mental incapacity could affect you at any time. For instance, a road traffic accident can cause head injuries or a stroke can affect anyone at any stage.
We have advised many clients and their attorneys concerning the execution and subsequent registration of an enduring power of attorney.
We Can Help You with Your Power of Attorney Forms
If you would like further information and legal advice regarding an Enduring Power of Attorney or an Advance Healthcare Directive, contact one of Amorys’ experienced solicitors based in our office in Sandyford, Dublin at info@amoryssolicitors.com and (0)1 213 59 40.
Membership of Organisations
Amorys Solicitors LLP is a registered firm of solicitors with the Law Society of Ireland. The conduct of each solicitor within the firm is regulated by the Legal Services Regulatory Authority.
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Sharon M. Scally
Managing Partner -
Deirdre Farrell
Partner -
Brian Kirwan
Partner -
Mark Felton
Partner
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