Enduring Power Of Attorney Ireland

So What Is An Enduring Power Of Attorney?

An Enduring Power of Attorney is a legal document which allows an individual to choose to appoint a specific individual (usually a close family member) to look after both your person and financial affairs in the event that for any reason you lose your mental capacity in the future. We at Probate Ireland must stress that an enduring power of attorney is only valid or effective if you lose your mental capacity at some future point in time. An enduring power of attorney can be an extremely powerful document that significantly bypasses the hurdles and problems your family could face when trying to deal with your affairs should you become incapable. The main purpose of an enduring power of attorney is to enable somebody of your choosing to have the entitlement to manage your financial and personal affairs for you if you lose your mental capacity at some future date.


What Happens If I Lose Mental Capacity Without An Enduring Power Of Attorney?

If you lose your capacity through illness or accident and do not have an enduring Power of Attorney in place then a viable alternative that an appointed individual becomes a “Ward of Court“. The Wards of Court process is a court based process and everything that is done for someone under that process is done by application to the wards of Court Office. It is therefore likely to be less time consuming and less expensive to have had an enduring power of attorney in place. However, if you have an Enduring Power of Attorney appointed the process is much more straightforward and your nominated attorney will be entitled to manage your financial and personal affairs for you much more easily (in accordance with the wishes set out in your enduring power of attorney). It is therefore highly preferable to have an enduring power of attorney in place prior to this. 


So Why Bother With An Enduring Power Of Attorney?

Have you considered how you or your family would cope if you were to suffer from some accident or illness which deprived you of the mental capacity to look after your own affairs? 

With advances in medical care, increasing life expectancy and varying property values there is a growing need for people to make arrangements which can be brought into effect in the event of mental incapacity arising. It is a tragic situation when old age becomes a disease- see PDF from World Health Organisation.

Under the Powers of Attorney Act 1996 it is possible for you to make provision for these situations by setting up an enduring power of attorney. Probate Ireland can explain the formalities and arrange for you to sign the necessary document now while you have the good health and the capacity to make the decision as to the person or persons whom you would wish to look after your affairs should the need arise. If a person loses mental capacity without having signed a valid Enduring Power of Attorney then in order to manage the person’s property and affairs it is necessary to have such a person made a Ward of Court. This can be an expensive and lengthy process so having an enduring power of attorney in place is preferable. 

There area many ways in which a person might lose mental capacity

Alzheimer’s disease
Dementia
Stroke

According to the Alzheimer Society of Ireland:

In 2009 there were more than 44,000 people in Ireland with dementia, with the number expected to be in excess of 104,000 by 2036 unless there is a medical breakthrough.
• Dementia can affect younger people; currently approximately 4,000 people in Ireland under the age of 65 have Younger Onset Dementia.
• Between 2002 and 2036, the number of people with dementia in Ireland is expected to increase by 303%, while the total population increases by less than 40%.See also Irish Health

By setting up an enduring power of attorney in advance you are able to choose some person or persons to deal with your affairs in a situation where you are no longer capable of doing so yourself. If you suffer such a setback and you do not have an enduring power of attorney in place then if your financial and property affairs are to be administered it will be necessary for an application to be made to the High Court to have you made a Ward of Court and to have someone appointed to take charge of your affairs.nor dies or recovers.


I’m Still Young – I Don’t Need To Make An Enduring Power Of Attorney Yet?

There may be less obvious need to make an enduring power of attorney when compared with someone who is of advancing years and showing some sign of memory loss but you can never tell when accident or illness might strike so you can never afford to be complacent.

The following is a summary from the required statutory form of the enduring power of attorney and is a helpful guide of what the Powers of Attorney Act 1996 can do for your security and peace of mind.


The Effect Of Creating Enduring Power: Information For Donor

An enduring power of attorney enables you to choose a person (called an “attorney”) to manage your property and affairs in the event of your becoming mentally incapable of doing so. You may choose one attorney or more than one. If you choose more than one, you must decide whether they are to be able to act:
jointly (that is, they must all act together and cannot act separately), or
jointly and severally (that is, they can all act together but they can also act separately if they wish).

If you give your attorney(s) general power in relation to all your property and affairs, they will be able to deal with your money or property and may be able to sell your house.

If you do not want your attorney(s) to have such wide powers, you can include any restrictions you like. For example, you can include a restriction that your attorney(s) may not sell your house.

You may authorise the attorney(s) to take certain personal care decisions on your behalf, e.g. deciding where you shall live. If you decide to do so, you should indicate, the particular personal care decisions you want to authorise. You should also name any person you would like the attorney to consult so that the attorney can have regard to that person’s views as to your wishes and feelings and as to what would be in your best interests.

Unless you put in a restriction preventing it, your attorney(s) will be able to use any of your money or property to benefit themselves or other people by doing what you yourself might be expected to do to provide for their needs.

If you specifically authorise it, your attorney(s) will also be able to use your money to make gifts, but only for reasonable amounts in relation to the value of your money and property and subject to any conditions or restrictions you may impose.

You may also appoint an attorney or attorney(s) to act in the event that the original attorney is unable or unwilling to act.

You must give notice of the execution of the enduring power of attorney as soon as practicable to at least two persons. None of them may be an attorney under the enduring power of attorney. At least one must be the donor’s spouse, if living with the donor. If the donor is unmarried, widowed or separated, notification must be given to a child of the donor (if applicable) or otherwise to any relative (i.e. parent, sibling, grandchild, widow/er of child, nephew or niece). The prescribed form of notice is contained in the Third Schedule to the Enduring Powers of Attorney Regulations, 1996.

Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). You may provide for the attorney’s remuneration as well .

If your attorney(s) have reason in the future to believe that you have become or are becoming mentally incapable of managing your affairs, your attorney(s) must apply to have the enduring power of attorney registered in the High Court. Once registered, an enduring power of attorney cannot be revoked effectively unless the Court confirms the revocation. You may revoke the enduring power of attorney at any time before registration.

Before applying for registration of the enduring power of attorney, your attorney(s) must give written notice of intention to do so to you and to the persons you notify of the execution of the enduring power of attorney. You and these persons (if they are not then available, certain of your relatives) will be able to object if you or they disagree with registration. The prescribed form of notice is contained in the Fourth Schedule to the Enduring Powers of Attorney Regulations, 1996.
Effect of accepting enduring power of attorney: information for attorney

If you have reason in the future to believe that the donor is, or is becoming, mentally incapable of managing his or her property and affairs, you must apply to have the enduring power of attorney registered in the High Court. Before doing so you must give written notice of your intention to the Registrar of Wards of Court and also to the donor and the persons whom they donor has notified of the execution of the enduring power of attorney. (If these persons are no longer available, notice must be given to certain relatives, as specified in the Powers of Attorney Act, 1996.) The prescribed form of the latter notice is contained in the Fourth Schedule to the Enduring Powers of Attorney Regulations, 1996.

The enduring power will not come into force until it has been registered. However, once you have applied for registration you may take action under the power to maintain the donor and prevent loss to the donor’s estate and maintain yourself and other persons insofar as that is permitted under section 6(4) of the Act. You may also make any personal care decisions permitted under the power that cannot reasonably be deferred until the application for registration has been determined.

Unless there is a restriction in the enduring power preventing it, you may use the donor’s money or other property for your benefit or that of other people to the following extent but no further, that is to say, by doing what the donor might be expected to do to provide for your or their needs. You may not use the donor’s money to make gifts unless there is specific provision to that effect in the enduring power and then only to persons related to or connected with the donor on birth or marriage anniversaries or to charities to which the donor made or might be expected to make gifts. The amounts of any such gifts are to any restrictions in the enduring power and, in any event, may be only for reasonable amounts in relation to the extent of the donor’s assets.

You are obliged to keep adequate accounts of the donor’s property and affairs and to produce the accounting records to the Court if required.

In general, as an attorney you are in a fiduciary relationship with the donor. You must use proper care in exercising on behalf of the donor the authority given by the enduring power and you must act only within its scope. In particular, you must observe any conditions or restrictions imposed by the power and also the limits imposed by the Powers of Attorney Act, 1996.

You may recover the out-of-pocket expenses of acting as attorney. The enduring power may provide for remuneration for so acting.

You may disclaim at any time up to registration of the power. Thereafter you may do so only on notice to the donor and with the consent of the High Court.

After the enduring power has been registered you should notify the Registrar of Wards of Court.


Can An Enduring Power Of Attorney Create Peace of Mind?

An enduring power of attorney is a complex legal document that allows any person (the “donor” of the power) who is of sound mind to delegate certain powers to particular people during their lifetime in the event of the donor subsequently becoming mentally incapable of managing his or her own affairs.

The attorney or attorneys are appointed by the donor and are often that person’s spouse, partner, children or other loved one. The execution of an enduring power of attorney is an excellent way of planning for the future and provides a mechanism for the management of the donor’s affairs in the event that the donor becomes incapable of doing so themselves in the future.

Unlike a general power of attorney which has immediate effect once executed, an enduring power of attorney will only come into effect at a later date should the donor become incapable of managing their affairs. The enduring power of attorney will not come into force should you remain in control of your affairs.

As a donor of an enduring power of attorney, there are a number of safeguards designed to protect you. We will meet with you alone to discuss the implications of entering into the document. In order to proceed, we must be satisfied that you are mentally capable of entering into the enduring power of attorney. Evidence of a medical expert must be provided in this regard.

When executing an enduring power of attorney, you can decide as to the scope of your affairs that you wish to have delegated to your attorneys. As donor, you can decide whether to grant authority for the control of your financial affairs, personal care, housing, medical affairs etc. We will take great care in discussing all options so as to determine what is best for you.

An enduring power of attorney therefore allows you to maintain control of your affairs until such time as you may become unable to do so yourself through mental incapacity.


Preliminary Information Required To Prepare An Enduring Power Of Attorney

Basic Information

(unless I know you already) I need evidence of your identity – in order to comply with the Anti Money Laundering Regulations – simply the same as if you were opening a bank account, that is photographic evidence (your passport or driving licence) and a utility bill to confirm your address. I also need to know your date of birth, your occupation and your marital status.

Your doctor will have to certify that you are mentally capable of signing the document so you need to give me his/her name address and contact number.

You may choose one or more reliable people as you attorney(s) to act on your behalf in the event of your becoming incapable of looking after your own affairs. I need the names addresses and contact numbers for the selected person(s).

It is advisable to appoint one or more substitutes who will act as attorney in the event that the originally nominated person(s) cannot do so.

You are required to give notice of the making of the power to two of your closest relatives (other than an attorney(s) I need the names, relationship, addresses and contact numbers for the selected person(s) At least one of these people must be your spouse, if living with you. If you are unmarried, widowed or separated, notification must be given to your child (if applicable) or otherwise to any relative (i.e. parent, sibling, grandchild, widow/er of child, nephew or niece).

Further Points

If you give your attorney(s) general power in relation to all your property and affairs, they will be able to deal with your money or property as they think best and they may for example sell your house. If you do not want your attorney(s) to have such wide powers, you can include any restrictions you like. I will discuss this aspect with you when we meet.

Although you need not do so you could name any person you would like the attorney to consult so that the attorney can have regard to that person’s views as to your wishes and feelings and as to what would be in your best interests. You will need to let me know the name address and contact number for any such person so that reference may be made to the person concerned in the document.

You may also appoint an attorney or attorney(s) to act in the event that the original attorney is unable or unwilling to act. I need the names, relationship, addresses and contact numbers for any such person(s)

HERE you will see more information concerning the Powers of Attorney Act 1996 – I ask you to please read these notes carefully and let me know if there is any aspect which you require clarified.