There are two types of Power of Attorney available under Irish Law:
Power of Attorney - which gives a person a specific or a general power to do something for the donor and ceases as soon as the donor becomes incapacitated
Enduring Power of Attorney - which takes effect on the incapacity of the donor
Power of Attorney
A Power of Attorney can be specific and for a limited purpose (example: in order to sign documents to effect a sale of your house in your absence).
For a general purpose, entitling the attorney to do most things you would normally do on a day to day basis (example: to conduct daily business, and financial affairs).
A Solicitor is not required to create a general power of attorney. It can be created when signed either by you or at your direction and in the presence of a witness.
We would however advise that you do obtain legal advice before you sign a form appointing someone else to manage your affairs.
You can generally appoint anyone you wish to be your attorney.
Enduring Power of Attorney
An Enduring Power of Attorney goes much further than a general Power of Attorney and permits the attorney to make Personal Care Decisions on the donor's behalf once the donor is no longer fully mentally capable of making decisions.
Personal Care Decisions could include decisions such as who the donor should see, where they should reside, what treatment they should receive, how their finances should be used. These decisions must be in your best interests, in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions.
The attorney is considered to be acting in your best interests if he/she reasonably believes that what he/she decides is in your best interests.
However, because the donor creates the Enduring Power of Attorney whilst still mentally capable of making decisions for themselves, the donor has the option of specifically excluding any of these powers when setting up the Enduring Power of Attorney or can make the Attorney's powers subject to any reasonable restrictions, conditions or considerations.
Almost anyone can be appointed to be your Attorney, including your spouse or civil partner.
In contrast to a General Power of Attorney an Enduring Power of Attorney is far more complex in its creation.
Creating an Enduring Power of Attorney:
An Enduring Power of Attorney involves the transfer of considerable powers from you to another person of your choosing.
Due to its very nature there are a number of legal safeguards to protect you from potential abuses should the donor lose their mental capacity to make decisions. The Enduring Power of Attorney can only come into effect following the completion of a specific set of procedures. The courts have a general supervisory role in the implementation of the power.
The procedure for executing an Enduring Power of Attorney requires the involvement of both a Doctor and a Solicitor.
The Enduring Power of Attorney document must take a specific format and will include:
Written confirmation from you that you understood the effect of creating the power at the time of its creation.
A statement from a Solicitor that he/she is satisfied that you understood the effect of creating the Enduring Power of Attorney and that you were not acting under undue influence.
A Doctor's verification that in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power.
At least two, if not more, people need to be notified of the making of an Enduring Power of Attorney, these persons will not include the Attorney themselves.
One of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).
Registering an Enduring Power of Attorney:
The Enduring Power of Attorney will not take effect until registered. This process is begun by the individual who has been appointed by the donor to act as the Attorney. This person makes an application to the Registrar of Wards of Court, once there is reason to believe that you are or are becoming mentally incapable.
The attorney must provide a medical certificate confirming that the person who created the Enduring Power of Attorney is now incapable of managing their affairs.
In order to safeguard against potential abuse, the attorney must notify the person who created the Enduring Power of Attorney of his application along with the notice parties chosen by the creator of the Enduring Power of Attorney.
The creator of the Enduring Power of Attorney or one of his chosen notice parties will have 5 weeks to lodge a notice of objection with the Registrar of wards of Court.
The Role of the High Court:
The High Court supervises the Enduring Power of Attorney having power to give directions about the management and disposal of your property.
The High Court can order cancellation of the Enduring Power of Attorney where it is satisfied that:
You are mentally capable and likely to remain so.
The attorney is unsuitable.
Fraud or undue pressure was used to induce you to create the power.
REMEMBER: The donor can revoke an EPA at any time before an application is made to register it.
Our Solicitors can guide you through the process of creating, registering and if it becomes necessary, revoking an Enduring Power of Attorney.
Contact Us Now to arrange a no obligation Consultation with one of our Experienced Solicitors.
The information contained above is intended as a guide only and does not purport to be legal advice. Independent and specific legal advice should be sought.