Enduring Power of Attorney Explained
A Power of Attorney (POA) is easily confused with an ‘Enduring Power of Attorney’(EPA). A Power of Attorney is a document in which a person (the donor) appoints another person (the attorney) to represent the donor or to act in the donor’s place, either generally or for specific purposes. For example, a person residing abroad may find it useful to appoint an attorney in Ireland to deal with his or her affairs here while out of the country. Another example is a person going on holidays may appoint an attorney to complete a transaction such as the purchase of a property while away. The Power of Attorney comes to an end and ceases to have any effect if the donor revokes it, becomes mentally incapacitated or dies.
An Enduring Power of Attorney (EPA), on the other hand, is a legal document by which the donor states that the appointed attorney will have power to act, not at the date of creation of the EPA but rather in the future if and only if the donor becomes mentally incapable. Therefore it is a useful mechanism to appoint someone of your
choice to control your affairs should you become mentally incapacitated e.g.
through brain damage, Alzheimer’s disease, or other forms of dementia.
What happens if I have no EPA?
If you have no EPA and you become mentally incapacitated then an application may have to be made to the High Court to have you admitted into Wardship under the supervision of Wards of Court office. In this scenario the court has the power to
make decisions on your behalf, where you have been proved as an adult to be of
unsound mind. Your property and money is brought under the control of the court and
the Courts Service will have the duty of overseeing these in your best interest.
How do I create an EPA?
A doctor and a solicitor must be consulted to create the EPA.
Step 1: Your role.
You are required to appoint the attorney and sign a statement that you have understood the effect of creating the power. You may appoint more than one attorney however it is not advisable to appoint more than three. You may decide whether they are to act by majority or unanimously. You may appoint them with limited powers or with general powers to act for you. However if you limit their powers you run the risk that you may have to be made a ward of court in respect of those powers you have not vested in your attorney. You may also appoint an alternative attorney who will step in if your appointed attorney is not able to act.
Step 2: The role of the solicitor:
Your solicitor must be satisfied that you are compus mentis and that the EPA is
not being created as a result of fraud or/and undue pressure. In law the document creating the EPA must be in a prescribed form. It must include the following signed statement by your solicitor confirming:
1 That he/she is satisfied that you understood the effect of creating the power.
2 That you are acting of your own free will and not acting under another’s influence.
Step 3: The role of the doctor:
A doctor is required to provide a statement verifying that at the time the document was signed:
- You had sufficient mental capacity and;
- You understood the effect of creating the
These statements act as legal safeguards to ensure that you are creating the
EPA in full legal knowledge of what is involved and that there is no pressure on you to create this power.
Step 4: Notifications.
You must notify at least two other people when you create an EPA. One of these people must be your spouse if he/she is living with you. If you are unmarried, separated or widowed, one of the two people you must notify is your child (if you have children) or else a relation such as a parent, sister or brother, nephew or niece. If the attorney later applies to register the EPA, these named relations of yours (called notice parties) must be notified of this application in writing.
Step 5: The EPA comes into effect.
The EPA can only come into operation when it has been registered. A solicitor or the chosen attorney normally has custody of the EPA documents until such time as they are registered in the High Court. To register an EPA, the appointed attorney must make an application when he/she sees that you are becoming mentally incapable.
The application is made to the Office of Wards of Court, a division of the High Court. This is at 15/24 Phoenix Street North, Smithfield, Dublin 7 (tel: 01-888 6189). This office is principally concerned with the registration stage of EPAs.
Before an application is made, your attorney must notify you of his/her intention to make the application. The attorney must have a medical certificate confirming that you are no longer capable of managing your affairs. This
notice must be given to you and to the two or more people (notice parties) who were notified when the EPA was created.
Can I object to the registration of an EPA?
You and the notice parties have five weeks from the date they have received this notification of registration in which to lodge an objection in the Office of Wards of Court. An objection might be made about, for example:
- the unsuitability of an attorney;
- any suspected fraud or undue pressure on
- the donor to create an EPA;
- the donor of the EPA not actually being
- mentally incapable.
Can I revoke an EPA?
An EPA can be revoked (cancelled) by the donor at any time before an application is made for registration. The appointed Attorney and the Notice Parties must be notified of the revocation. It may also be revoked after registration but an application must first be made to the High Court.
If the court finds there was fraud or undue pressure put upon the donor to create the EPA ,or that the attorney is unsuitable (typically where only one attorney has been appointed) or the donor is mentally capable and will
probably remain so, then the EPA will be set aside.
Who can be appointed as an attorney?
You may appoint anyone you wish to be your attorney, including a spouse, a friend, a family member or a colleague. You may appoint more than one person to act as your attorney and it is important to appoint two attorneys if
possible, in case of the death, incapacity or unsuitability of one of these attorneys. Attorneys can be appointed to act jointly or severally that is individually.
What decisions should I authorise my attorney to take on my behalf?
With an EPA, you may give your attorney(s) a general authority to act on your behalf in relation to all your affairs. You may include an authority to the attorney(s) to make personal care decisions on your behalf. These do not
usually include medical decisions. At all times decisions must be made in your best interest. The attorney, where this is possible, should consult with family members and carers when making these decisions. This is to ascertain what your views are, what would be in your best interest to do or what you would be likely to do in the circumstances. Personal care decisions may include:
- l Where and with whom you should live;
- l What training and rehabilitation you should
- l Your dress and diet;
- l The inspection of your personal papers.
Must I give my attorney power over all my affairs?
No, you decide which powers your attorney will have over your affairs. You can make the EPA subject to particular restrictions or conditions. Beware however of restrictions. If for example the Bank freezes your bank account because you have lost your mental capacity, then if your Attorney has not been given power to deal with your financial affairs, you will have to be made a Ward of Court.
May I change the person who is appointed as my attorney?
Yes, once the registration process has not begun.
Can I change my mind after executing an EPA?
Yes, once the stage of registration has not begun you may revoke your EPA and enter into a new one.
When does an EPA cease?
On death, unless previously revoked.
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