Enduring power of attorney
What happens if you suddenly and unexpectedly find yourself incapable of making decisions for yourself through illness or injury such as a stroke or serious accident? Have you people in your life who are dependent on you? Family? Employees? Clients? Customers? Who will manage your affairs, make care decisions on your behalf, run your business, manage your bank accounts, pay your bills?
In Ireland, if you lack capacity to deal with your assets and property they are “frozen” and cannot be used by anyone else unless they are jointly owned or someone else has power of attorney over those assets. It is possible to take action and put in place a legal document called an enduring power of attorney. The enduring power of attorney allows you to appoint one or two people to look after your affairs in the event that at some stage into the future you become incapable (even temporarily) of managing your own affairs. It is a sensible precaution to put an enduring power of attorney in place as:-
- it will enable you to decide the people who will act on your behalf;
- it will help prevent or minimise family disputes in relation to care decisions and how your property and business interests are to be managed and
- it is much more straightforward and far less expensive than the alternative Ward of Court application.
What does the enduring power of attorney cover?
The enduring power of attorney allows general or specific powers to a be given by you and can provide for the appointed attorney(s) to take a wide range of actions on your behalf in relation to property, business, financial and/or personal care decisions. The care decisions must be in your best interests, must be in accordance with what you would have been likely to do and the attorney(s) must consult family members and carers in making these decisions.
Various powers can be excluded or included when creating the enduring power of attorney.
How do you create an enduring power of attorney?
Due to the nature of an enduring power of attorney, a number of strict legal safeguards exist to protect against possible abuses.
The enduring power of attorney is created while you have full mental capacity. Legal documents are completed including a doctor’s certificate confirming mental capacity. Two attorneys are named and, as a safeguard, two other people (notice parties) are notified of the making of the enduring power of attorney. All parties must be satisfied that you understand the effect of creating the enduring power of attorney and you must sign a statement to this effect.
Who can you appoint to be your attorney?
You can appoint whomever you wish to be your attorney(s) provided they are over 18 years of age and of good character. It is vitally important that you have trust and confidence in them as they will take over the entirety of your assets and affairs should you become mentally incapable of managing your own affairs. It is also important that the attorney(s) you nominate have the capacity and the necessary skills to manage your affairs.
Registration & the role of the High Court
An enduring power of attorney only comes into effect on registration which is done by the Registrar of Wards of Court. A medical certificate must be obtained to confirm that you have now become mentally incapable of managing your affairs. There are further legal safeguards in place at registration stage. Ultimately the High Court has a supervisory role in respect of the enduring power of attorney. If necessary, the Court has the power to give directions regarding the management and disposal of your property.
As a solicitor who regularly advises clients in relation to enduring powers of attorney, I see at first hand the peace of mind which comes from taking the necessary steps to put an enduring power of attorney in place. Our approach at Douglas Law is to encourage our clients to be proactive on this issue. When someone loses their mental capacity it can be an extremely distressing and difficult time for their family members. However, with sound advise and some planning you can have an enduring power of attorney in place which will assist your appointed attorneys to make the right decisions on your behalf.
If you have queries in relation to the process or would like advice on putting an enduring power of attorney in place, please contact me, Teresa O’Sullivan, on 021 4897256 or on email at firstname.lastname@example.org