Enduring Powers of Attorney

02 Jul Enduring Powers of Attorney

An Enduring Power of Attorney (sometimes referred to as a “Living Will”) is a document designed to enable each of us to appoint the people of our choosing to look after our affairs if we are either temporarily or long term mentally incapacitated and so unable to do so ourselves.

This document is a relatively recent arrival on the Irish legal scene. It means that anyone can now set out in a legally binding document who they wish to be in charge of their affairs if they are incapacitated and unable to do so themselves. It is particularly useful if you are aware that you are elderly and becoming more frail and wish to ensure that the people you prefer to look after you are the people that actually do so.

At the moment people generally leave the execution of an Enduring Power of Attorney until such time as they need to do so. However, it is perfectly possible and may be preferable from the point of view of one’s peace of mind to execute an EPA whilst still hale and hearty.

A person who wishes to create an Enduring Power of Attorney is called the Donor (ie the giver) of the Power. The Donor nominates at least two people who he wishes to look after his affairs in the event he does not have the capacity to do so. These people are called Attorneys. The Donor can give his Attorneys a General Power of Attorney so that the Attorneys are free to look after all apects of his affairs, or he can choose to restrict the Power so that the Attorneys only have authority to act in respect of certain aspects of his affairs. This can be useful where the Donor has a particular wish to ensure that a specific asset, eg the family home isn’t sold during the Donor’s lifetime.

The Attorneys who you wish to appoint must be consulted in advance to ensure that they are happy to take on the role of your Attorney. They will also have to sign the Enduring Power of Attorney Deed to signify that they are willing to do so.

Your doctor will also have to sign the Deed creating the Enduring Power of Attorney to confirm that he/she has met with you and that you had the capacity to execute such a document. Your solicitor also has to sign the Deed to confirm that he/she took instructions from you, the Donor, and that in the opinion of your solicitor at the time the Deed was executed by the Donor he/she had the necessary mental capacity to understand the effect of the creation of the Power of Attorney. In other words, it is necessary for the Donor of the Power to understand that he/she is giving control of his/her affairs to the Attorneys, if the Donor subsequently becomes unable to look after their affairs.

The Enduring Power of Attorney Deed must be in a specific format as laid down by the legislation. There are a number of inbuilt protections for the Donor of the Power. At the time of signing the Power of Attorney the Donor must identify two people (“the Notice Parties”) who must be told of the fact that the Donor has completed an Enduring Power of Attorney. The Donor can also identify other people who they wish to be consulted by the Attorneys about the management of their affairs.

If it happens that the Attorneys wish to make the Power of Attorney effective at a later stage, they must first obtain a medical certificate from the Donor’s doctor confirming that the Donor is, or is becoming incapable by reason of a mental condition of managing his/her affairs. The Attorneys must then notify the Notice Parties. If they are also satisfied that the time has come to make the Enduring Power of Attorney effective, it can be registered, at which point the Attorneys then take control of the Donor’s affairs. If the Notice Parties are not satisfied that the time is right for any reason they can object and in those circumstances the Court can adjudicate on what is the correct course of action in all of the circumstances.

An Enduring Power of Attorney can be revoked by the Donor at any time before it is registered and likewise can be revoked if the Donor, following registration, recovers his/her health.

An Enduring Power of Attorney only relates to the Donor’s wellbeing and assets whilst the Donor is alive. The Attorneys cease to have control of the Donor’s affairs when the Donor dies. An Enduring Power of Attorney does not have any effect on the Will of the Donor, which comes into force as and from the date of death, at which point the Executors appointed by the Donor in his/her will take over the administration of the Donor’s estate.