Conor McLaughlin & Associates can advise on Enduring Powers of attorney. An enduring power of attorney (EPA) allows the attorney to make personal care decisions on the donor’s behalf once he/she is no longer fully mentally capable of taking decisions themselves. Personal care decisions may include deciding where and with whom the donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the donor wants, he/she can specifically exclude any of these powers when setting up the power of attorney or 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.
Creating an enduring power of attorney
Because the enduring power of attorney involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you from abuses. The procedure for executing the enduring power of attorney is complex and requires the involvement of a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through and the courts have a general supervisory role in the implementation of the power.
The document creating the power must be in a particular format and must include the following:
- 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;
- A statement from you that you understood the effect of creating the power;
- A statement from a solicitor that he/she is satisfied that you understood the effect of creating the power of attorney; and
- A statement from a solicitor that you were not acting under undue influence.
At least 2 people must be notified of the making of an EPA, none of whom will be the attorney. 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).
Who cannot be appointed?
An enduring power of attorney may be granted to individuals or trust corporations but may not be granted to the following people:
- People under the age of 18
- People convicted of offences involving fraud or dishonesty
- People disqualified under the Companies Acts
- An individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, civil partner, child or sibling
The EPA can only come into force when it has been registered. However, once an application to register the EPA has been made, the attorney may take action under the EPA’s powers to maintain you and prevent loss to your estate. The attorney may also take action to maintain themselves and other persons, in so far as it is permitted under Section 6 (4) of the 1996 Act. The attorney may also make any personal care decisions permitted under the powers that cannot reasonably be deferred until the application for registration has been determined.
Also, in certain circumstances before the EPA is registered, application may be made to the court to exercise the EPA’s powers under Section 12 of the Act.
In order to register an EPA, the future attorney makes an application for registration to the Registrar of Wards of Court, once there is reason to believe that you are or are becoming mentally incapable. The attorney must have a medical certificate confirming that you are incapable of managing your affairs.
Five weeks before making this application, the attorney must notify you and the notice parties of his/her intention to do so. Within the 5 weeks, the donor or a notice party can lodge a notice of objection on one of the grounds given in Section 10 (3) of the Act with the Registrar of Wards of Court.
Legal Services Offered:
- Enduring Powers of Attorney; and
- Ward of Court.