An Enduring Power of Attorney (EPA) is a critical document if you wish to make arrangements  to look after your affairs in the event that you yourself are no longer capable of doing so.  This is very different from a normal Power of Attorney which terminates if you are no longer capable of managing your own affairs.  The EPA on the other hand only comes into effect when you are no longer capable of managing your own affairs.

In the past, if you became incapacitated whether through physical or mental illness, your assets and property were normally frozen and became vested in the Office of Wards of Court who might appoint a Committee to look after your affairs.   This was often a clumsy procedure and decisions were made which did not always reflect best interests of the donor.

The position is very different now and when sections in the  Assisted Decision-Making (Capacity) Bill 2015  are finally implemented (and it is very sad that these sections of the Act remain infuriatingly in limbo) the attorney will be able to make a wide range of health care decisions.  At the moment, the attorney may make certain personal care decisions –  fairly limited matters such as diet, dress, housing , social welfare. These decisions  must be made in your best interests and be in accordance with what you would have been likely to do. The attorney must consult family members and carers in making these decisions because his/her powers are very wide and cover where and with whom the donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the donor wants, he/she can specifically exclude any of these powers when setting up the power of attorney or can make the attorney’s powers subject to any reasonable conditions and restrictions.  It should also be borne in mind that the High Court has the power to intervene at any time in the event that difficulties arise.

You can appoint anyone you wish to be your attorney, including a spouse, civil partner, family member, friend, colleague, etc. The procedure for creating an enduring power of attorney is much more complex than that for creating a general power of attorney, and rightly so given its importance. 

CREATING AN EPA

In order to prepare an EPA, your solicitor and doctor must be involved . The person creating the EPA is the “donor” and is required  to set out clearly what powers the attorney is to have. These powers may be very general or they may be subject to conditions or restrictions.

The EPA document must  include

  • a statement from the doctor that the donor had the mental capacity to sign the EPA at the time it was signed and that he/she understood the effect.
  • a statement from the donor to the effect that s/he knew the consequences of creating the EPA.
  • a statement from a solicitor that the donor had the capacity to make the EPS and that the donor was not acting under any duress or undue influence.

The donor must then notify two other people that the donor has completed an EPA, one of whom must be the donor’s spouse, who must be living with the donor.  If there is no spouse or if the parties are not living together, then notice must be given to a child of the donor or otherwise to any relative.

 ACTIVATING AN EPA

When the EPA is created, nothing happens until you become mentally incapable.   At that stage, the EPA must be registered. The attorney(s) has to make an application to the Registrar of Wards of Court once there is reason to believe that you are or are becoming mentally incapable.

Before making this application the attorney must notify the donor of his/her intention to do so.  The attorney must have a medical certificate confirming that you are incapable of managing your affairs.  A notice of the attorney’s application must be served on the donor and on a number of other people including the people who were notified of the creation of the EPA (any of the notice parties may object to the registration of the EPA). Five weeks is given to wait for any objections – then it could take another 4 weeks to register to EPA.

REGISTRATION  OF AN EPA

The EPA can only come into force when it has been registered. However, once an application to register the EPA has been made, the attorney may take action under the EPA’s powers to maintain you and prevent loss to your estate.  The attorney may also make any personal care decisions permitted under the powers that cannot reasonably be deferred until the application for registration has been determined.

Also, in certain circumstances before the EPA is registered, application may be made to the court to exercise the EPA’s powers under Section 12 of the Act.

In order to register an EPA, the future attorney makes an application for registration to the Registrar of Wards of Court, once there is reason to believe that you are or are becoming mentally incapable. The attorney must have a medical certificate confirming that you are incapable of managing your affairs.

Five weeks before making this application, the attorney must notify you and the notice parties of his/her intention to do so. Within the 5 weeks, the donor or a notice party can lodge a notice of objection on one of the grounds given in Section 10 (3) of the Act with the Registrar of Wards of Court.

REVOCATION OF AN EPA

The donor can revoke an EPA at any time before an application is made to register it. Once the EPA has been registered you cannot revoke it even if you are, for the time being, mentally capable. To revoke it, you would have to apply to the court and the court would then have to approve the revocation.

 TERMINATION OF AN EPA

An EPA ceases on the death of the donor or, where a spouse or civil partner is the attorney, the EPA ceases where:

  • The marriage/civil partnership no longer exists due to annulment, divorce or dissolution
  • A judicial separation is granted or the couple enter into a separation agreement
  • A protection, barring or similar order is made on the application of either spouse/civil partner

An EPA ceases where the attorney becomes someone who is one of the group of people listed by the Act who cannot be granted enduring powers of attorney. The court can make an order cancelling an EPA where, for example, it finds the attorney is unsuitable.

If someone doesn’t have an Enduring Power of Attorney ,  the only option available if they  become mentally incapacitated (through old age, illness or trauma) is to make an application through the High Court under the Wards of Court process. In this scenario the court has the power to make decisions on your behalf, where you have been proved as an adult to be of unsound mind. Your property and money is brought under the control of the court and the Courts Service will have the duty of overseeing these in your best interest.

If you need assistance on any matter relating to a Will or Probate, you should contact Vincent at 018401780 or email him at vincent@shannons.ie