Table of contents
– Information provided by John O’Connor Solicitors
What is an Enduring Power of Attorney (‘EPA’)?
An Enduring Power of Attorney (‘EPA’) is a power of attorney put in place by a person (known as a ‘Donor’) whereby one or more persons are appointed (known as an ‘Attorney/s’) to manage their affairs in the event that the Donor becomes mentally incapable.
It is important to note that a Donor cannot put in place an EPA after they have lost capacity and if this has happened the only option will be for an application to be made under the Wardship procedure as described above.
Under an EPA the Attorney will usually have full authority to manage the Donor’s financial affairs and/or deal with any personal care decisions on their behalf. Such powers can be limited or curtailed in the body of the EPA however any such functions omitted from the scope of the EPA will then be dealt with via the Wardship procedure.
Although an EPA can be an attractive option for a Donor given its flexibility and cost effectiveness vs. Wardship, serious consideration should be given as to whether there is a suitable and trustworthy candidate to take on the role of Attorney. It is important to note that the Donor will have wide ranging powers over the affairs of the Attorney and will not be supervised by the court or any other person.
Once an EPA has been executed by the Donor it does not have any force or effect until such time as it can be shown that the Donor is incapable of managing their property/affairs because of a mental incapacity.
How do I put an Enduring Power of Attorney in Place?
The form of an EPA is set out under the regulations issued pursuant to the Powers of Attorney Act 1996. If the format or content of the EPA does not adhere to the said regulations it will be defective and invalid.
The person appointing the Attorney, the Donor, must execute the EPA in the presence of a solicitor. The solicitor must be satisfied that the Donor understands the nature and effect of the EPA and that no undue influence is being exerted on the Donor by any person.
A certificate must also be obtained from the Donor’s doctor confirming that the Donor has the requisite mental capacity to execute the EPA. The Attorney must sign the document after the Donor in the presence of a witness. By signing the EPA the Attorney confirms that they understand the obligations/duties they must adhere to, the primary one being that if the Donor’s mental health deteriorates to such an extent that the donor is or is becoming mentally incapable of managing his affairs the Attorney must register the EPA.
In order to offer additional protection to the Donor, 2 people (who cannot be attorneys) must be notified of the execution of the EPA. At least one of the notice parties must be a relative and the said person will also be notified in the event an application is brought to register the EPA.
As discussed above an EPA has no force and effect when executed, to be acted upon it must be registered.
When must an Enduring Power of Attorney be registered?
In order for a duty to arise to register the EPA, it is necessary to prove the following;
- That the donor is suffering from a mental disorder and
- That because of the mental disorder and mental incapacity, the person is incapable pf managing and administering their property/affairs.
A medical certificate from a doctor is required to prove the Donor is or is becoming incapable of managing and administering their property/affairs.
The Attorney will then apply to register the EPA in the High Court. Before doing so notice of the said application must be served on the Donor, the Notice parties and the Registrar of the Wards of Court.
If no objections are received the EPA will be registered and the Attorney will have full control over the financial and personal affairs of the Donor subject to any restrictions set out by the Donor within the EPA.
Are there any other options are there in this jurisdiction?
Unfortunately at the time of writing there are no other options in relation to dealing with the affairs of persons suffering from a mental disorder and/or mental incapacity. There is at the time of writing no formal legal recognition of a living will or advanced care directive in relation to healthcare decisions in Ireland at present. However and as set out above once the provisions of the Assisted Decision-Making (Capacity) Act 2015 have been fully commenced the position will change and this covered in a separate Article on the topic.
For further information on enduring power of attorney, contact John O’Connor Solicitors today.