A Power of Attorney is a legal document which you can create during your lifetime when are in good mental health and are deemed to have full capacity to do so. It allows another person who is called your attorney to act on your behalf if you are absent, abroad or physically incapacitated through illness.
In Ireland the relevant pieces of legislation are the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996. Powers of Attorney Act 1996 and the
Historically, it has been the case in Ireland, that if someone becomes mentally incapacitated and therefore is unable to manage their affairs, due to an accident or illness, all of their assets become frozen and could not be used by anyone else. This can create significant difficulties for the family of the incapacitated person who might of necessity need to access bank accounts or other assets to ensure the persons care needs can be met. The difficulty can only be overcome by either making the individual a Ward of Court or by relying on an enduring Power of Attorney.
An Enduring Power of Attorney is just one of the legal arrangements that you can make during your lifetime, in the event you become incapacitated or unable to deal with your affairs. there are two specific and different forms of power of attorney. The first of these is what is called a Current or General Power of Attorney.
This is a document that you can sign during your lifetime by which you grant a specific person/s your permission to act for your for a specific purpose of for a fixed period of time. this type of Power of Attorney does not prevent you from also continuing to magae your own affairs of you wish to do so. this type of Power of Attorney is automatically revoked and at an end once the specific purpose for which it was created has come to an end or the time period set out has expired. it is also automatically revoked if you lose your mental capacity .
A general or current power of attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do). For example, it may allow the attorney to take a wide range of actions on the donor’s behalf in relation to property, business, and financial affairs. He/she may make payments from the specified accounts, make appropriate provision for any specified person’s needs, and make appropriate gifts to the donor’s relations or friends.
If you lose your mental capacity the second form of Power of Attorney would become activated. that is the document that is called an Enduring Power of Attorney
More specific information about an Enduring power of attorney
An enduring power of attorney (EPA) is a document you sign during your lifetime at a time when you have full mental capacity. it enables you to choose and nominate who it is you want to look after your personal and financial affairs in the event that you have become mentally incapacble of doing that for yourself.
in addition to allowing your “Attorney” to manage your financial affairs you can also allow them to take charge of and make person care decisions on the your behalf once you are no longer mentally capable of making those decisions for yourself.
Personal care decisions include things like deciding where and with whom you may live, who you see or not see and what training or rehabilitation you should get if nefcessary.
you can if you want to specifically exclude any of these powers when setting up the power of attorney or you can make the attorney’s powers subject to any reasonable conditions and restrictions.
You can appoint anyone you wish to be your attorney, including a spouse, civil partner, family member, friend, colleague, etc.
The procedure for creating an enduring power of attorney is much more complex than that for creating a general power of attorney and it is imprtant that is is created for you by someone with a level of expertise in the area. it is not uncommon to find that errors are made in the setting up process which only come to light when the EPA needs to be registered. At that stage it can be very difficult to rectify erros that have been made and it can therefore create unnecessary delay and additional expense in respect of resolving those problems.
How to create an enduring power of attorney
if you decide to set up an enduring power of attorney, it in effect means that you are prepared to transfer a considerable amount of powers from you to another person at some future point in time. Not surprisingly therefore there are a number of legal safeguards to protect you from abuses. The procedure for completing an enduring power of attorney is complicated and requires the involvement of a solicitor and a doctor.
An enduring power will only come into effect when certain procedures have been followed and dealt with carefully for you.
as part of the formalities for setting up an enduring power of attorney it is necessary for example to obtain
1. A statement by a doctor verifying 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. your doctor also has to state that you understood the effect of creating the power.
2. your solicitor also has to state that that he/she is satisfied that you understood the effect of creating the power of attorneyand that they were satisfied you were not acting under undue influence
Further safeguards include the provision that at least 2 people must be notified of the fact that you have created or made an EPA.
Neither of those people can be one of your attorneys, and the regulations provide that at least one of the notice parties must be your spouse or civil partner if living with you. ( unless they are the person you have appointed as your attorney)
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). your solicitor whill ensure that these regulations are complied with and will prepare the relevant documentation to ensure that this is done correctly
When does the EPA come into force
The EPA can only come into force when it has been registered. It will become subject to registration once your nominated attorney/s are of th eopinion that you either have become or are becomming incapable of managing your own affairs.
the registration process will also be undertaken by your solicitor on your behalf as it is a copmplicated procedure which requires additional regulations to be complied with.
It will take a minumum of sic to eight weeks for an EPA to be registered as there are certain time restrictions whhcih have to be complied with during the registration process. for example, the same two people who are notified of the fact that you have created an EPA also have to be notified again once your attorneys feel it is necessary to register the EPA. once they are notified a five week period has to pass before the process can be continued as they are entitled to object to the EPA being registered if theuy wish to do so.
Once an application to register the EPA has been made, your attorney is entitled to take certain actions under to maintain you and prevent loss to your estate. Your attorney may also take action to maintain themself and other persons, in so far as it is permitted under Section 6 (4) of the 1996 Act.
Your attorney is also entitled to make any personal care decisions permitted under the powers that cannot reasonably be deferred until the application for registration has been determined.
There are also certain circumstances in which the attorney can apply to the High Court to exercise the EPA’s powers under Section 12 of the Act before the EPA is registered
The High Court AND Enduring Powers of Attorney
The High Court has an extensive supervisory role in respect of the nduring Powers of Attorney. Among other things, the court has power to give directions about the management and disposal of your property. The court may confirm the revocation of a power of attorney if it is satisfied that you were mentally competent to revoke it. The court can order cancellation of the power 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
Scope of authority of an enduring power of attorney
The EPA may give general authority to the attorney to do anything that the attorney might lawfully do or it may merely give authority to do specific acts on your behalf.
The attorney may make certain personal care decisions – these must be made in your best interests, must be 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.
A personal care decision is a decision concerning one or more of the following:
Can an Enduring Power of Attorney be revoked
You can revoke and cancel your EPA at any time before an application is made to register it. Once the EPA has been registered you cannot revoke it even if you are, for the time being, mentally capable. To revoke it, you would have to apply to the court and the court approve the revocation.
Termination of an enduring power of attorney
There are a number of situations which will result in the enduring power of attorney being cancelled. for example, an EPA ceases on the death of the donor.
there are other situations where it will also be cancelled. these are where:
- The marriage/civil partnership no longer exists due to annulment, divorce or dissolution
- A judicial separation is granted or the couple enter into a separation agreement
- A protection, barring or similar order is made on the application of either spouse/civil partner
An EPA ceases where the attorney becomes one of the people listed above who cannot be granted enduring powers of attorney. The court can make an order cancelling an EPA where, for example, it finds the attorney is unsuitable.