Enduring Power of Attorney Solicitors
As dementia and Alzheimer’s continue to grow in Ireland you could be left in the difficult situation of not being able to handle your own affairs at some point in the future. One option which gives you back some control and certainty if such a situation arises is to make an Enduring Power of Attorney. In an Enduring Power of Attorney you can state what you want and who you want to look after your affairs if at some stage in the future you are no longer able to manage your own affairs. There are some similarities with making a will, however, an Enduring Power of Attorney, if it comes into effect, will have a bearing on how you live your life and look after your affairs while you are alive.
If someone in Ireland is mentally incapacitated (for example, because of illness, disability or a progressive degenerative illness such as dementia and Alzheimer’s), all of their assets and property are normally frozen and cannot be used by anyone else unless they are jointly owned or, someone has power of attorney to deal with their property or money.
An Enduring Power of Attorney is a legal document that enables a person (the donor) to appoint one or more other people (the attorney(s)) to manage their financial affairs and property in the event that the donor becomes mentally incapable of doing so at some future time. It is possible to include restrictions if necessary, and also you can specify certain ‘personal care’ decisions that the Attorneys can make. Enduring Powers of Attorney only apply when someone is mentally incapable, they do not apply if someone becomes physically incapable but retains their mental capacity.
Enduring Powers of Attorney are very powerful documents and it is important that the donor fully understands the implications of giving authority to other people for managing their affairs before they sign this document.
Once made it is also possible to revoke an EPA, i.e. cancel the power of attorney so it no longer has any effect. However, if the EPA has been registered in the High Court, an application is required for permission to revoke it and revocation cannot be done without this permission.
While there are different tasks to complete throughout the process you will be guided step by step by your Enduring Power of Attorney solicitor. Your convenience is important to us and we aim to minimise the amount of time you have to spend on the process. We offer video calls to save you from travelling to meet us and you can meet us at times convenient to you. When documents need to be signed we can come to meet you at your home.
One of the best things I experienced was the personal touch. It can be daunting dealing with solicitors and I never felt like a hindrance. Gary was always available on the phone and email for me and always responded very quickly. I know of an elderly person dealing with Gary who really appreciated being able to meet face to face in a place where she felt comfortable.
Gary was great. Uncertainty and not being kept informed is a client’s greatest concern. Gary kept us informed all the way.
What we found best was the professionalism of the service overall, the confidentiality, empathy and understanding. Communication was always clear in both e-mail and in person. Response times to e-mails, and meetings, was very good. I believe your fees are very competitive, and good value for your service.
Enduring Power of Attorney Frequently Asked Questions
Q: What is an enduring power of attorney (EPA)?
It is a legal process in which you hand over to someone else the power to decide what is done with your financial affairs and property and, if required, certain personal care decisions. The person you appoint as your legal representative is known as the ‘attorney’.
Q: When can an attorney use this power?
They can use the power only in the event that you are mentally incapable and the EPA is registered with the High Court.
If an attorney has reason to believe that you are, or are becoming, mentally incapable of managing your property and affairs, the attorney must apply to have the enduring power registered in the High Court. Before doing so, the attorney must have a certificate from a medical doctor stating that you are no longer capable of managing your affairs. The attorney must also give written notice to:
- the Registrar of Wards of Court
- You
- A minimum of 2 people whom you have decided at the time of making your EPA should be notified of any attempt to register the EPA. These people can act as a safeguard and object to the registration of the EPA if they believe it is not necessary or appropriate
Q: Should I pay my attorney for these services?
Attorneys can recoup any out-of-pocket expenses arising from carrying out their duties under the EPA. However, you can also make provision for an attorney to be remunerated, e.g. if they are a professional, such as an accountant or solicitor, they could be paid their normal fees for such work.
Q: Is it safe to make an EPA?
EPAs are very powerful documents. You need to remember that the person you appoint as your attorney may have complete power over your money, savings, investments and property. If you become mentally incapable you are unlikely to be able to check what they are doing. Therefore, when choosing your attorney(s), consider how well they handle their own money, whether you can trust them to act in your best interests and if they will use your money to provide for your needs.
You can, as a safeguard, appoint more than one attorney. You can also consider appointing them jointly so that they must act together. You can add conditions to the EPA when you make it, for example, including a requirement that the attorney present annual accounts to a solicitor or accountant, enabling their actions to be monitored.
Attorneys are obliged to keep adequate accounts of your property and affairs and to produce these accounting records to the courts if required.
Q: Is there any special format for an EPA?
Yes. An EPA is drawn up on a special form which is divided into five parts: A, B, C, D and E. The completed form must have all five parts including the notes in Part A.
- Part A: consists of notes to the donor and the attorney concerning an attorney’s powers.
- Part B: is where the donor appoints the attorney(s).
- Part C: is for the attorney to read and complete, accepting the appointment.
- Part D: is for the solicitor’s statement confirming that you understand the effect of creating the EPA.
- Part E: is for the statement of a registered medical practitioner confirming that you understand the effect of creating the EPA.
Q: Who can be an attorney?
Your attorney can be almost anyone you choose who is willing to act for you. However, individuals disqualified from acting as attorney are bankrupts, persons convicted of certain offences or disqualified under the Companies Acts or owning or connected with the management or operation of a nursing home in which you reside. They must be at least 18 years old. The most frequent people appointed as attorneys are spouses and children.
It is best, but not essential, that your attorney lives in the Republic of Ireland. This is not a requirement, but it might create practical problems in administering your affairs if your attorney does not live in the Republic of Ireland.
Q: What can an attorney do?
If you decide to give the attorney general authority, they will be able to do everything you could do – for example signing cheques, paying bills, dealing in shares or buying and selling houses and other property, etc.
Q: Can I restrict what the attorney does?
Yes. You can say that they can only deal with the parts of your affairs which you list on the form.
You can also add any restrictions or conditions you want, some examples being:
- prevent them from selling your house
- require them to get written medical evidence before they use the EPA
- require them to answer every year to a professional (e.g. an accountant or lawyer) or a family member
You can also decide if you wish to allow your attorney to make gifts with your money and also place limits on such gifts if so. In any event an attorney can only make such gifts to a value which is ‘reasonable……in relation to the extent of the donor’s assets’.
An attorney has a duty under common law to keep accounts. The courts can call on attorneys to account for their dealings at any time.
Q: Can I appoint different Attorneys?
Yes, for example, you may want your husband or wife to be the main attorney, but with your children as substitute attorneys who then become attorneys if your husband or wife can no longer deal with your affairs.
Q: What happens after I sign an EPA?
When the donor has signed the EPA, then the attorney(s) should sign along with their respective witnesses. The statement of capacity by a medical practitioner and the certificate of the solicitor should ideally be completed within 30 days of the signing by the donor.
The notices should also be served on the two (or more) notice parties and documentary evidence of this, e.g. a certificate of postage, must also be retained as this evidence will be required should there be a need to register the EPA at some future date. There is no period of notice prescribed by the legislation but the notice should be served by registered or recorded post as soon as practicable (preferably within 30 days) of the execution of the EPA.
Enduring Power of Attorney Solicitors
Gary O’Sullivan
Solicitor, Head of Department
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