Living wills solicitors in Ireland
How is it that we are all experts when it comes to the art of worrying? Pause for a moment and consider all the things you have feared/dreaded/worried were going to happen in the past year. Now, think about how many of those worries actually came to pass. Probably none and possibly only one or two out of the dozens of worries that preoccupied your mind and wore you down.
“If you are distressed by anything external the pain is not due to the thing itself, but to your estimate of it, and this you have the power to revoke at any moment.”
MARCUC AURELIUS ANTONINUS AUGUSTUS 121-180
In this feature we look at something we all worry about – fear of old age. The older we get the more we worry about illness, incapacity, loss of independence, lack of funds, loneliness, death and even the afterlife. As we are now living longer the risks are greater.
Do you panic at the prospect of growing old?
Besides living a healthy lifestyle, the following are four important steps you should take to help put your worries to rest.
Step 1 – Make a ‘Living Will’ in Dublin
A number of years ago, there was a case of a woman who had been in a coma (persistent vegetative state) for almost 23 years and whose family wished to withdraw the artificial nutrition and hydration (ANH) that was sustaining her. The decision of the High Court was to authorise the withdrawal of the ANH with Mr Justice Lynch stating that she should “be allowed to die in accordance with nature with all such palliative care and medication as is necessary to ensure a peaceful and pain-free death”. The Supreme Court upheld this ruling and consented to the removal of the feeding tube based on what it considered to be the woman’s best interests. There was also a suggestion that if the woman had expressed a wish regarding her medical treatment in the event of being in a persistent vegetative state, that the Court would have taken this into account.
A Living Will (also known as an ‘Advance Healthcare Directive’) is where you set out your wishes in writing, regarding future medical care, in the event that you were to become mentally incapable or unable to make decisions yourself. A Living Will in Ireland may only authorise lawful acts (such as withdrawal of medical treatment) and may not direct the giving of a lethal injection with the intention of terminating life. If, for example, you were in a coma after a serious accident and a decision had to be made by your doctors and family on whether to ‘pull the plug’, your views as set out in a ‘Living Will’, while not legally binding, would be very persuasive. The medical profession usually consult with your next of kin on their views, however there is no legal basis for this. Your next of kin consist of spouse, children, parents, siblings. What if you are a Lotto millionaire and your next of kin stand to gain substantially from your demise? In this scenario, had you directed as follows in a Living Will: ‘In the event of severe illness or injury, I wish to receive medical treatment for as long as possible, even if I am suffering discomfort, and I wish that my daughter Mary be consulted for her views as to my wishes and feelings as to what would be in my best interests’, then this would be of great assistance to the persons ultimately charged with making the decision. Everyone has the right to accept or refuse medical treatment. There is no legislation governing Living Wills in Ireland and it remains uncertain whether a Living Will has any definitive legal standing. This is in contrast to the US and many EU countries where Living Wills are legally valid.
Now I can imagine some of you thinking this is a case of the Lawyers drumming up some more business in these hard times!’ Not so. You do not need Living wills solicitors in Ireland and you may read more about Living Wills and even make your own online at www.livingwillstrust.com. It is important to discuss this in advance with your GP and family and to give them copies of the document when signed. Your signature should be witnessed by two independent persons who do not stand to gain from your death.
The Law Reform Commission has recommended the introduction of Legislation to allow adults to accept or refuse medical treatment in the event of future incapacity or illness. Euthanasia and assisted suicide would continue to be prohibited under criminal law.
Step 2- make an 'enduring power of attorney'
What happens when you become incapable mentally of managing your own affairs? Some of us may have the benefit of a caring and loving family to look after us however others may not be so fortunate. What if the family disagree on important decisions and world war three breaks out? What if there is no close family to look after us? Will you be locked up in a Nursing Home or made a ‘Ward of Court’? Fear not, help is at hand.
It is possible to appoint someone else to make decisions on your behalf if you are not capable of making them yourself. This is done by creating an ‘Enduring Power of Attorney’ (‘EPA’) which is a legally binding document. It is signed by you when you are compis mentis (healthy mind). Firstly you appoint a trusted person or persons to make decisions for you and secondly you direct what you would like to happen if you become mentally incapacitated at some time in the future. It is not possible to allow for the making of health/medical care decisions by another person (see ‘Living Will’ above) in an EPA. It is possible to allow for making of decisions such as:
- where and with whom you should live
- whom you should see and not see
- what training and rehabilitation you should get
- your diet and dress
- inspection of your personal papers
- housing, social welfare and other benefits.
- who should manage your finances.
The EPA may give general authority to the attorney to do anything that the attorney might lawfully do or, you may prefer to restrict the authority of the attorney to do specific acts only (such as those mentioned above), on your behalf.
The attorney must make all decisions in your best interests. Any decisions must accord with what you would have been likely to do, and the attorney must consult family members and carers in making these decisions.
The procedure is that having signed the EPA, your doctor certifies that you are mentally fit and able to understand the nature of the EPA document. You should discuss your proposal with your family before deciding who to appoint as Attorney. Two other persons (usually family members) are then notified of the making by you of this EPA. It is then stored is a safe place, usually your Solicitors office. It will only be activated if at some stage in the future your Doctor certifies you to be unfit through mental incapacity to manage your own affairs. An application must then be made by your appointed attorney to register the EPA in the High Court and only then, if certain conditions are satisfied, will your attorney be allowed to make decisions on your behalf.
It is recommended that you engage a Solicitor to prepare an Enduring Power of Attorney as it requires careful consideration, guidance and strict procedures must be followed for it to be valid.
STEP 3 – Have you made a ‘Will’?
Making a Will in Ireland is probably one of the most important matters to attend to as you grow older. Every person with a child or children and/or assets should have a will. Your Will, unlike the Living Will and the Enduring Power of Attorney described above, speaks from the date of your death and in it you provide for the distribution of your property, after your death, according to your wishes. The following are five important reasons why you should make a Will:
- In a Will you appoint an Executor, being a competent person you know and trust, to pay your debts and carry out your wishes after your death in a timely and efficient manner.
- Without a Will your property will be distributed according to the terms of Succession Act 1965 which may not be to your liking. This could result in a person you love dearly getting nothing and someone you detest getting a large slice of your estate.
- In a Will, you may also leave your property to your family in a tax efficient manner to minimise, or even eliminate totally, the amount of inheritance tax the Government takes.
- If you have minor children then the Will establishes a Trust fund for their benefit and appoints Guardians of your choice to look after them.
- If you are single or separated and living with a partner then, without a Will, your partner may find him or herself without a roof over their head and without any share in your estate.
Should you consult a Solicitor to make a Will? Absolutely ‘YES’ ! Do not purchase a ‘diy will’ in a newsagent or on the internet. Lawyers have made a good living out of the fees earned from disputes and legal challenges over badly drawn Wills. I acted for an Executor in relation one badly drafted Will (not by me, I hasten to add!) that spawned no less than four High Court cases initiated by a disgruntled relative. The witnessing of the signature on the homemade Will was not in accordance with the rules, and the Will was eventually struck down by the Court. What was left of the estate, after legal costs had to be deducted, was then distributed amongst the next of kin in equal shares. This was definitely not what the Testator wanted. In a 2008 case Judge Kearns said: ‘It is beyond doubt that small estates can be entirely dissipated by legal proceedings brought by disappointed parties whose intention may be to force the executor into some form of settlement or to vindictively waste the assets in legal proceedings......’
For the sake of a few hundred euro, being the cost of employing a Solicitor to draft your Will, why would you put your loved ones at risk of having to battle through the Courts for years over your estate?
Step 4 – Have you invested in your future?
Finally some investment advice for a worry free future:
‘If you ever get to heaven, you’ll be shown around by a guardian angel. Your first stop will be the Celestial Bank where your account will be checked and with a frown and a shaking of the head they will probably say: ’If only you had put more in on earth, you could have taken more out in heaven !’.
So be warned, it’s never too late to start investing in your future!!!!’(Re-produced without permission from the Bulletin, Johnstown Church, Navan, Co Meath).
- Guide to Ethical conduct and Behaviour – www.medicalcouncil.ie
- Living Wills Trust—www.livingwilltrust.ie
- Law Reform Commission—www.lawreform.ie
Why not call us now and get started on making that Will you have been thinking about?
With over thirty years experience in making wills and giving advice in relation to trusts and estate planning we have the expertise you need to get the job done quickly and cost effectively. Eoin O’Shea Solicitor in charge of our probate department has a Diploma in Trusts and Estate Planning and will be delighted to meet you to discuss your needs and help you plan your Will or Enduring Power of Attorney for peace of mind.
So why not get a no obligation fixed fee quote now. You could save a lot of money. If you have questions, why not call or email us now without obligation and we will be happy to answer your queries without charge.
No solicitor/client relationship or duty of care or liability of any nature shall exist or be deemed to exist between O’Shea Legal and you until you have received confirmation in writing from us in which we confirm our appointment as your Solicitors.
*In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
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Many thanks for all your help over the past three years with grateful appreciation.
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The Executors Guide - 'At last a step by step guide, composed in plain english, for the executor or administrator who chooses not to employ a solicitor. This book contains invaluable advice and tips on how to get the difficult task of winding up an estate of a deceased person done as quickly as possible avoiding the traps for the unwary. It covers all the steps from the grave to the final distribution of the estate. It can save the estate thousands of euro in legal fees'