Power of Attorney v Enduring Power of Attorney
A Power of Attorney is a legal document created by a person (the Donor) giving authority to another individual (Attorney) to act on their behalf. A general Power of Attorney is usually for a specified purpose and confers on the Attorney powers of a limited scope e.g. property transactions. A general Power of Attorney will automatically come to an end where the purpose has been fulfilled or where the Donor loses mental capacity.
An Enduring Power of Attorney (EPA), however, is a legal document created by the Donor while they are mentally competent which gives authority to their Attorney(s) to manage their affairs in event the Donor becomes mentally incapacitated. The Attorney will not have any powers conferred on him or her while the Donor is mentally competent of managing their affairs. The Donor must be medically certified as having lost capacity before the Attorney can seek to invoke the EPA. The Attorney must follow the process involved in registering the EPA with the Ward of Courts Office (set out below). Once registered, the Attorney can act.
EPA’s are created pursuant to the provisions of the Enduring Powers of Attorney Regulations 1996 (SI. 196/1996) as amended by SI No. 287/1996. The Assisted Decision Making and Capacity Act 2015 sets out that all new EPA’s will be created and registered pursuant to the Act and no longer under the 1996 Act. However, Part 7 has yet to be signed under Irish law and any EPA created under the 1996 Act will remain in place.
Why Execute an Enduring Power of Attorney?
If a person loses mental capacity through injury or illness without having executed a valid EPA then it is possible that that person will be made a Ward of Court. This involves a Court application whereby the person is taken into the custody of the Court and a committee is appointed to represent the Ward’s interests. The Ward of Courts process can be expensive in terms of both time and cost. Most importantly, the person who has lost mental capacity retains no control of how their affairs or care are managed.
By creating an EPA, the Donor can decide who will be responsible for managing their affairs in the event they are no longer mentally capable. It also allows the Donor to retain a degree of control and offers them the power to impose certain restrictions on the Power e.g. property is not to be sold without agreement of all family members. This ensures that the interests and welfare of the Donor are safeguarded. The Courts have an extensive supervisory role when the EPA has taken effect and has the power to give directions in relation to the management and sale of property.
A common misconception is that an EPA should only be executed by an older person. As life expectancy increases, diseases such as Alzheimer’s and dementia have become more prevalent. EPA’s can also be invoked where mental capacity is lost from the effects of stroke or acquired brain injury as a result of an accident. The EPA is applicable regardless of how capacity was lost and can be as general or specific as required by the Donor.
Considerations Before Making an Enduring Power of Attorney
Who should I appoint to act as Attorney?
You can appoint one or more Attorney but if appointing more than one, you must decide whether they may act jointly only or jointly and severally (i.e. they can act together or separately if they wish). A trust corporation can also be appointed. Most commonly, a close family member is appointed but that is not a requirement. The Donor should have complete trust in the Attorney to act in their best interests. The following persons cannot take on the role of Attorney:
a) Any person under the age of eighteen
b) A person who does not have capacity
d) Any person convicted of offences involving fraud or dishonesty
e) Any person disqualified under the Companies Acts
f) Any person who has been adjudicated bankrupt
g) Any person or trust who owns a nursing home in which the Donor lives or is an employee or an agent of.
What Powers Will They Have?
General powers given to attorneys will enable them to deal with your personal care and affairs.
The scope of the powers given to your Attorney may be narrow or wide depending on the wishes of the Donor. Restrictions may be put in place to prevent the Attorney dealing with certain aspects of the Donor’s care or dealing with affairs. The Donor may restrict the Attorney’s authority to deal only with their personal care. Personal care includes but is not limited to the following:-
- 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.
The list of personal care decisions does not include healthcare decisions therefore, it can be unclear the extent to which the Attorney will have power to make such decisions but there is a natural overlap between the two. Medical treatment preferences can be registered online by visiting www.thinkahead.ie.
The Donor may also restrict the Attorney from benefiting themselves or other people in the manner the Donor might be expected to do. While the Attorney will be able to re-coup any out of pocket expenses, the Donor may also provide for him or her to be paid. The Attorney is deemed to be acting in the Donor’s best interests.
As well as appointing an Attorney, the Donor must also give notice of the execution of the EPA after execution to at least two notice parties and the Attorney cannot be a notice party. A spouse, child or relative must be at least one notice part.
How And When Will The EPA Come Into Force?
An EPA can be revoked by the Donor at any stage up until it is registered. An Attorney must provide the Donor with written notice and must notify the notice parties of his or her intention to register the EPA five weeks prior to making an Application to the Wards of Court Office. The Attorney must apply to the High Court to have the EPA registered and the application should be accompanied by a Doctor’s Certificate that the Donor is no longer in a position to manage their affairs. The EPA will only come into force once it has been registered but once application to register has been submitted the Attorney may act on the Donor’s behalf to provide for maintenance and prevent any loss of the Donor’s estate and to make any personal care decisions that require immediate action.
Termination of EPA
The following are the situations whereby the EPA is terminated:
- Death of the Donor
- If the Attorney is the spouse or civil partner of the Attorney on divorce / dissolution / legal separation / separation agreement /annulment of the relationship
- Where any of the situations listed under (b) apply prior to registration of the EPA, the EPA will cease and the Attorney becomes a person who cannot be granted power to act as the Donor’s Attorney
Lavelle Solicitors is offering existing and new clients reduced rates on probate services for the month of May including;
- Drafting a Will
- Will and Enduring Power of Attorney (EPA)
For more information contact Jennifer Morrow, Solicitor in our Estate Planning and Probate Department.