ENDURING POWER OF ATTORNEY

An enduring power of attorney (EPA) is a legal device that can be set up by a person (the donor) to allow another specially appointed person (the attorney) to take action on the donor’s behalf in specific circumstances.

Having an EPA is a good way of planning for the possibility that you may not be able to make certain decisions for yourself at some stage of your life.
An enduring power of attorney is one of the many legal arrangements you can put in place in the event you become incapacitated or unable to deal with your affairs.

An EPA that was made on or after 26 April 2023 only takes effect if:

⦁ Registered with the Decision Support Service,
⦁ The donor becomes incapacitated and unable to manage their affairs,
⦁ The Decision Support Service has been notified of the incapacity and it accepts that fact.

EPAs made on or after 26 April 2023

The most important change is that the EPA must be registered with the Decision Support Service within 3 months of being made.

The Decision Support Service must also be notified when the donor loses capacity. The Decision Support Service then supervises and monitors the EPA to make sure that the donor’s interests are protected.

EPAs made before 26 April 2023

If you made an EPA before the commencement date of the new law, you do not need to register it with the Decision Support Service. If you become incapacitated, your attorney will register the EPA with the Office of the Wards of Court. The only change for EPAs that were made before the new law is that they now come under the Decision Support Service’s complaints procedure.

Previously, complaints about EPAs had to go to the High Court, which was a long and costly process.

What does an EPA cover?

Property and affairs

You can grant the attorney the power to make decisions regarding your property and affairs, including the power to:

⦁ Sell, exchange, mortgage or gift your property (subject to some limitations)
⦁ Buy property on your behalf.
⦁ Carry on a trade or profession on your behalf, where it is lawful to do so.
⦁ Carry out any contract you are a party to.
⦁ Pay your debts, taxes and carry out any other duties.
⦁ Apply for social welfare payments on your behalf.

Personal welfare decisions

The attorney may make certain personal welfare decisions on your behalf – 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.

A personal welfare decision is a decision concerning one or more of the following:

⦁ Where and with whom you should live
⦁ Who you should see and not see
⦁ What training and rehabilitation you should get⦁ Your diet and dress
⦁ Your healthcare
⦁ The use of force to restrain you in exceptional situations

Healthcare does not include medical interventions. For example, the attorney does not have the power to make a decision as to whether or not a person suffering from dementia should undergo surgery.

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 you have to use a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through.

The document creating the EPA must be in a particular format and must include the following:

⦁ A statement from you that you understood the effect of creating the power
⦁ A statement by a doctor verifying that in their 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 a solicitor or barrister that they are satisfied that you understood the effect of creating the power of attorney.
⦁ A statement from a solicitor or barrister that you were not acting under undue influence.
⦁ A statement by the chosen attorney or attorneys that they understand their obligations and agree to be an attorney

The making of the EPA must be witnessed by 2 people.
Various persons must be notified after you have made an EPA including your spouse, civil partner or cohabitant, your children (over the age of 18), and any other persons who may have been appointed to assist you in making decisions under the 2015 Act.

You make also specify in your EPA that certain other persons be notified.

Who cannot be appointed as an attorney?

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 an offence against you, your property or your child or their property.
⦁ An individual or trust corporation who owns a nursing home in which you live or a employee or agent of the owner, unless that person is also your
spouse, civil partner, child or sibling.
⦁ People convicted of certain offences under the 2015 Act.
⦁ Bankrupts or those in a personal insolvency arrangement (except where an EPA only grants them authority in personal welfare matters).
⦁ People convicted of offences involving fraud or dishonesty (except where an EPA only grants them authority in personal welfare matters)
⦁ People disqualified under the Companies Acts (except where an EPA only grants them authority in personal welfare matters)

For more information please call us on (01) 424 6200 or visit our contact page here