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What is an Enduring Power of Attorney

It is estimated that there are currently 38,000 people in Ireland suffering from dementia. While this figure seems very high it is likely to increase significantly over the next 15 years due to our ageing population. The statics however do not show the number of people affected, in particular loved ones, family members or those caring for people affected by the disease.

An Enduring Power of Attorney can provide a mechanism where authority can be given to an individual such as a family member to manage a person’s assets and affairs when you are no longer in a position to do so.

WHAT IS AN ENDURING POWER OF ATTORNEY?

An Enduring Power of Attorney is a document whereby you give authority to another person to make decisions on your behalf in the event of you being unable to make decisions due to mental incapacity. Without an Enduring Power of Attorney, if you become mentally incapacitated for example because of illness, disability or a progressive degenerative illness, your assets such as cash and property in your sole name would normally be frozen and cannot be used by anyone to pay bills on your behalf or to cover the cost of your care. In this situation an application would need to be made to make you a Ward of Court.

Both an Enduring Power of Attorney and Ward of Court application process provides for another individual to make decisions on your behalf when you are not in a position to do so, but the main difference is that with an Enduring Power of Attorney you get to choose who this individual will be. This is very important when it comes to managing your assets and making decisions about your care.

The Enduring Power of Attorney has no effect until such time as you are not mentally capable of managing your own affairs. A mental capacity certificate from the doctor is required to prove that you are incapable of managing your affairs.

Note: It doesn’t apply to the loss of physical capacity.

Part of the execution of an Enduring Power of Attorney involves your solicitor signing a certificate that they are satisfied that you understood the effect of creating an Enduring Power of Attorney. Therefore, before executing an Enduring power of Attorney you should discuss the implications and how to execute the Enduring Power of Attorney with your solicitor. The Enduring Power of Attorney document itself contains a detailed explanatory guide which can be very helpful.

WHO MAY ACT AS YOUR ATTORNEY?

The person you give authority to is known as your attorney. Your attorney will only have power to manage your property and affairs when you become mentally incapacitated. There are no restrictions on who can act as your attorney it is your choice. You should, however, chose an individual who is trustworthy and who will be in a position to manage your affairs in the event of your incapacity.

It is good idea to also appoint more than one attorney. Where you have appoint more than one Attorney, you can decide whether they can act:

  • Jointly (which is together) which acts as another safe guard; or
  • Jointly and severally (which is together or independently). This option may be the best and is particularly useful where you have one attorney that lives abroad.
  • If you wish for your attorneys to act jointly at all times, then you should be aware that where two people are appointed to act jointly, then, in the case of the death, incapacity of any one of the attorneys, the remaining attorney may continue to act solely, unless the Enduring Power of Attorney provides otherwise. Therefore, if you should wish at all times to have two attorneys then you should appoint a substitute alternative attorney as well.

WHAT POWERS DO THE APPOINTED ATTORNEYS HAVE?

An Enduring Power of Attorney can give a general authority or limited authority to your attorney. If you want to limit the powers of the attorney it is extremely important that the Enduring Power of Attorney document is drafted to reflect this. For example, if you do not want your attorney to have the power to sell your house then this must be set out clearly in the Enduring Power of Attorney. The powers you give your attorney(s) is important, if you have any queries please do not hesitate to contact us with any queries you may have.

The Enduring Power of Attorney can extend to cover a large area. It can cover the following areas:

  1. Personal care decisions: gives the power to your attorney to make decisions such as where you should live, what training or rehabilitation you should get, and so on.You should go through this list carefully and delete the powers that you do not wish to give your attorney.
  2. Decisions in relation to all your property: if a general power is given this can include making decisions such as the power to sell your property, sell off shares, and other assets. As referred to above you can limit this power.

Note: While an Enduring Power of Attorney allows you to limit the power you give to your attorney, you should take into account that the less authority that you give your attorney, the greater the risk that your attorney will be unable to manage all of your property and deal with your affairs. When you attend our office we can discuss in detail the best type of Enduring Power of Attorney for you, and one which meets your individual requirements.

As you can see an Enduring Power of Attorney involves giving considerable powers to your attorney, as a result there are generally a number of safeguards included in the Enduring Power of Attorney where both your solicitor and your doctor will need to sign certificates.

WHAT IS INCLUDED IN AN ENDURING POWER OF ATTORNEY?

  1. A statement by your doctor verifying that in his/her opinion you have the mental capacity at the time that the Enduring Power of Attorney was executed.
  2. A statement from you that you understood the effect of creating the Enduring Power of Attorney
  3. A statement from your solicitor that he/she is satisfied that you understood the effect of creating the Enduring Power of Attorney.
  4. Certain people must be notified of the making of an Enduring Power of Attorney, including family members.

The Enduring Power of Attorney ceases to have effect on your death. The attorneys will no have the power to deal with your assets at this point. On your death, your assets will then dealt with by your Executor appointed under your Will or if you have no will according to the rules on intestacy.

Note: It is common for people to execute enduring power of attorneys at the same time that they complete their wills.

The information set out above is for guidance purposes only and is no substitute for specific advice tailored to met your own needs. If you would like to discuss the implications of creating an Enduring Power of Attorney or need advice on any matter, please contact us to arrange a convenient appointment.


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