Why Make 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 the 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 the 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.

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 although there are proposals to amend this general rule in the Advanced Healthcare Bill 2012 which has not yet been enacted.  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.