Enduring Power of Attorney

Introduction

An Enduring Power of Attorney (EPA) is a simple legal document, which allows a person grant another person authority to manage some or all of their affairs in circumstances where they become ill and loose mental capacity.

An EPA is an important document as it allows people to plan for their future and to be assured that their affairs will be taken care of by people they trust.

If a person in Ireland becomes mentally incapacitated as a result of illness, disability or an accident, all of the persons assets are usually frozen and can not be used by anyone else unless the assets are in joint names or unless someone is granted power of attorney to deal with the property. Making an EPA is therefore very important as it ensures that if a person does loose mental capacity their future and the future of their families can be protected.

Who can make an EPA?

In order to make an EPA a person must have full mental capacity. It is therefore important that a person makes an EPA when they are young and healthy. In order for an EPA to be properly executed, it must contain a declaration from the General Medical Practitioner of the person making the EPA (known as the donor). The statement from the GP must declare that the person making the EPA had full mental capacity at the time the document was made and that the person making the EPA fully understood the powers of the EPA

How do I make an EPA?

An EPA is a relatively simple document, however because it is a hugely important document it must be in a particular format and include particular items. An Enduring Powers of Attorney is regulated by the Powers of Attorney Act 1996 which requires the EPA to be created in a very specific format, this is to ensure that you are protected by the law when making such an important document.

In order for an EPA to be valid it must contain

  • A statement from the donor’s doctor regarding full mental capacity
  • A statement from the donor themselves stating that they understand the powers and effects of the EPA
  • A statement from your solicitor stating that he/she believes the donor fully understands the powers of the EPA and that the donor was not being influenced by third parties into making their decision.

What powers are granted by an EPA?

An EPA allows a person to grant powers to another person to deal with and make decisions regarding all aspects of a person’s life.. The person(s) granted these powers under the EPA are known as the Attorneys. A person can have either one or two attorneys. An EPA can be as specific or as general in the granting of powers, as a person likes. A general EPA grants the attorney full power to make all decisions regarding a person’s financial, property and business affairs. An EPA also allows the Attorney to make ‘personal care decisions’ on the donor’s behalf. Personal care decisions can include decisions regarding:

  • Where a person should live
  • The type of training or rehabilitation a person should receive
  • The type of diet a person should be on
  • Decisions relating to a person’s dependent children
  • And decisions regarding social welfare and other benefits.

Importantly it is held that personal care decisions does not include the powers to make medical decisions, and an Attorney can therefore not consent to medical treatments or procedures on behalf of the donor.

In order for an EPA to be an effective legal document, it is necessary for the donor to notify at least two other people known as notice parties. These notice parties must include the donor spouse if living with the donor, or a child of the donor or a close relative of the donor. In these circumstances relative can mean for example a grandchild, niece, nephew, sibling or cousin.

Registration

The EPA can only come into force when it has been registered. In order for the EPA  to come into force the donor must have lost mental capacity and be unable to properly look after their own affairs.

In order to register an EPA the attorney must apply to the High Court looking for the EPA to be implemented. Before the EPA can be registered the Attorney must lodge with the court a medical certificate confirming the donor has lost mental capacity.

The Donor must also serve their application on the donor and on the notice parties to ensure there is no objection to the EPA being granted. The court has a supervisory role with regard to the registration of the EPA. The court can have the power to give directions regarding the management and disposal of the property. The court can also refuse the registration or terminate the EPA in circumstances where they believe the donor:

  • Has sufficient mental capacity
  • Where fraud or undue pressure is proved to have been used in the creation of the power
  • Or where the attorney is held to be unsuitable.

Once an Enduring Power of Attorney has been registered, it cannot be revoked unless the Court agrees to do this. An EPA is obviously a very important document as it gives a person the freedom to plan and make their own choices about how they want to live their life. It is essential that an EPA be made when people are young and have the full mental capacity to make such important life decisions.