What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal instrument or document appointing someone (an Attorney) to look after your financial and personal affairs for you in the event that at some point in the future you lose your mental capacity and are therefore no longer able to look after your own affairs.
There are two important things to note about Enduring Powers of Attorney. Firstly, they can only be put in place while you have the mental capacity to do so and secondly, they cannot become effective until such time you are deemed incapable of looking after your own affairs.
What are the benefits to creating an EPA?
An EPA can be an extremely powerful document that helps to overcome difficulties your family could face when trying to deal with your affairs in circumstances where you have become mentally incapable. It enables you to appoint a person of your own choosing to act and make decisions on your behalf. If a person were to lose their mental capacity without having a valid EPA in place, it would be necessary to have such a person made a Ward of Court in order to manage that person’s affairs. This can be an expensive and lengthy process so having an EPA in place is preferable.
Please bear in mind that an EPA does not only apply to elderly patients or those showing some sign of memory loss. It is also suitable in situations involving brain injury, psychosis or other physical and/or mental dysfunction which may affect a person’s ability to manage their own affairs.
How do I create an EPA?
The procedure for executing an EPA requires a statement from your doctor verifying that you have the mental capacity to create an EPA and that you understand the effects of creating it. Your solicitor will also certify a similar statement.
Certain people, namely family members must be notified of the making of an EPA. At this stage you will need to decide who your Attorney will be as this will be documented in the EPA. It is also advisable to discuss your nomination with the proposed Attorney as they must be willing to act.
Who can be my Attorney?
The choice of the Attorney is a personal matter. Remember that the Attorney will, at your choice, be able to make both financial and personal care decisions so it is important that the person who is chosen is reliable and trustworthy. More often than not, it is a close family member who is chosen to be an Attorney.
You can appoint more than one person as your Attorney. You can choose for the two or more Attorneys to act jointly or severely i.e. whether they must act together when making decisions or can do so individually.
What Powers will my Attorney have?
Your Attorney will have the power to make both financial and personal care decisions on your behalf such as choosing a Nursing Home, deciding what training and/or rehabilitation you should receive and they can even make gifts on your behalf.
You can choose to give your Attorney a general authority to deal with all of your property and affairs. Alternatively, if you do not want your Attorney to have such wide powers, you make the EPA subject to particular restrictions or conditions. For example, you can include a restriction that your Attorney may not sell your house.
When does the EPA come into force?
The EPA can only come into force once it has been registered. Once there is reason to believe that you are or are becoming mentally incapable your Attorney can make an application to register the EPA. The application must include a medical certificate from your doctor confirming you are incapable of managing your affairs. Your Attorney must also serve notice of their intention to register the EPA on you and your notice parties. Of course, you and/or your notice parties can object to the registration of the EPA. Remember, you can also revoke an EPA at any time before an application is made to register it.
What changes have been brought about by The Assisted Decision-Making (Capacity) Act 2015 with regard to EPA’s?
Firstly, it is important to note that an EPA created under the Powers of Attorney Act 1996 will still have effect after the Assisted Decision-Making (Capacity) Act 2015 (2015 Act) is commenced. Following the commencement of the Act, all new EPA’S will be created under the 2015 Act.
As discussed earlier, when creating an EPA you can authorise your Attorney to make decisions in relation to matters concerning your property, finance and personal welfare. The 2015 Act expands these powers to include health care matters.
Other fundamental changes include the registration of the EPA with the new Decision Support Service, as opposed to the Office of the Wards of Court. The 2015 Act also imposes regular reporting and accounting obligations on Attorneys to the Director of the Decision Support Service.
Should you have any queries or should you feel we can assist you in this area please call us on 071 9162211 or email us at info@carteranhold.ie
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