the enduringpower of attorney

(EPA)

march 2009 s

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What is a Power of Attorney?

A power of attorney is a legal document bywhich a person (the donor) allows anotherperson (the attorney) to represent the donoror to act in the donor’s place, either generallyor for specific purposes. It comes to an end ifthe donor becomes mentally incapacitated.

An Enduring Power of Attorney (EPA), onthe other hand, is a legal document by whichone person (the donor) states that anotherperson (the attorney) will have power to actin the future on the donor’s behalf during anylater mental incapacity of the donor.

It is thought that a much-needed Office ofthe Public Guardian will be set up at somestage in the future. The Public Guardianwould have the capacity to oversee EPAs andaddress any problems involving the working,registering or drawing up of an EPA.

The purpose of an EPA

To permit you to appoint someone of yourchoice to control your affairs should youbecome mentally incapacitated e.g.through brain damage, Alzheimer’s disease,or other forms of dementia.

In order to avoid a Ward of Courtapplication being made in the future. Inthis situation the court has the power tomake decisions on your behalf, where youhave been proved as an adult to be ofunsound mind. Your property and money isbrought under the control of the court andthe Courts Service will have the duty ofoverseeing these in your best interest.

How to create an EPA:

There are a number of steps to creating anEPA. The services of both a doctor and asolicitor are required to create it.

The role of the solicitor:

Your solicitor must be satisfied that the EPA isnot being created as a result of fraud or/andundue pressure. In law the document creatingthe EPA must be in a prescribed form. Thedocument creating the Power of EnduringAttorney must include the followingstatements by your solicitor:

1 That he/she is satisfied that you understoodthe effect of creating the power.

2 That you are acting of your own free willand not acting under another’s influence.

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The role of the doctor:

A doctor is required to provide a statementverifying that at the time the document wasexecuted (drawn up): You had sufficient mental capacity. You understood the effect of creating the

power.

Your role:

You are required to make a statement thatyou have understood the effect of creatingthe power. These statements act as legalsafeguards to ensure that you are creating theEPA in full legal knowledge of what isinvolved and that there is no pressure on youto create this power.

You must notify at least two other peoplewhen you create an EPA. One of these peoplemust be your spouse if he/she is living withyou. If you are unmarried, separated orwidowed, one of the two people you mustnotify is your child (if you have children) orelse a relation such as a parent, sister orbrother, nephew or niece.

If the attorney later applies to register theEPA, these named relations of yours (callednotice parties) must be told of this in writing.

The point at which an EPA comes intoeffect

The EPA can only come into operation when ithas been registered. A solicitor or the chosenattorney normally has custody of the EPAdocuments until such time as they areregistered in the High Court.

To register an EPA, the appointed attorneymust make an application when he/she seesthat you are becoming mentally incapable.

The application is made to the Office ofWards of Court, a division of the High Court.This is at 15/24 Phoenix Street North,Smithfield, Dublin 7 (tel: 01-888 6189). Thisoffice is principally concerned with theregistration stage of EPAs.

Before an application is made, your attorneymust notify you of his/her intention to makethe application. The attorney must have amedical certificate confirming that you are nolonger capable of managing your affairs. Thisnotice must be given to you and to the twoor more people (notice parties) who werenotified when the EPA was created.

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Objection to the registration of an EPA

The donor and the notice parties have fiveweeks from the date they have received thisnotification of registration in which to lodgean objection in the Office of Wards of Court.An objection might be made about, forexample:

the unsuitability of an attorney;

any suspected fraud or undue pressure onthe donor to create an EPA;

the donor of the EPA not actually beingmentally incapable.

The revocation of an EPA

An EPA can be revoked by the donor at anytime before an application is made forregistration.

Concerns after registration of an EPA

A person who has a concern about the way aregistered EPA is working can write anaffidavit (sworn statement) to the Office ofWards of Court about their concern.

Attorneys are not required to keep the courtsinformed of their actions, but an applicationcan be made by the donor, the attorney orany other interested person to the court foran Order, which can include directions onhow the attorney manages or disposes of theproperty of the donor. The attorney can alsobe obliged to produce records and accounts ifnecessary.

Revocation after registration

When someone wants to revoke an EPA afterits registration, it is necessary to apply to theHigh Court. The court can make an Ordercancelling the EPA where, for example, it findsthat:

there was fraud or undue pressure putupon the donor to create the EPA;

the attorney is unsuitable (typically whereonly one attorney has been appointed);

the donor is mentally capable and willprobably remain so.

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Who can be appointed as an attorney?

Under the Powers of Attorney Act 1996 youcan appoint anyone you wish to be yourattorney, including a spouse, a friend, a familymember or a colleague. You may appointmore than one person to act as your attorneyand it is important to appoint two attorneys ifpossible, in case of the death, incapacity orunsuitability of one of these attorneys.Attorneys can be appointed to act jointly.

Persons who are not permitted to beattorneys include:

People under the age of 18 years.

Bankrupts.

People convicted of an offence involvingfraud or dishonesty.

People disqualified under the CompaniesActs from acting as directors.

An individual, a trust or a corporation whoowns a nursing home in which you live oran employee or an agent of the owner(that is, unless that person is also yourspouse, child or sibling).

Decisions you can authorise yourattorney to take on your behalf:

With an EPA, you may give your attorney(s) ageneral authority to act on your behalf inrelation to all your affairs. You may include anauthority to the attorney(s) to make personalcare decisions on your behalf. These do notusually include medical decisions. At all timesdecisions must be made in your best interest.

The attorney, where this is possible, shouldconsult with family members and carers whenmaking these decisions. This is to ascertainwhat your views are, what would be in yourbest interest to do or what you would belikely to do in the circumstances.

Personal care decisions may include:

Where and with whom you should live;

What training and rehabilitation you shouldreceive;

Your dress and diet;

The inspection of your personal papers.

Must you give your attorney power overall your affairs?

No, you decide which powers your attorneywill have over your affairs. You can make theEPA subject to particular restrictions orconditions.

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Can you change the person who isnominated as your attorney?Yes, once the stage of registration has notbegun.

Can you change your mind afterexecuting an EPA?Yes, once the stage of registration has notbegun. See the section on concerns afterregistration of an EPA.

When does an EPA cease? On death, unless previously revoked.

Legal AidCivil legal aid is available for a person whowishes to create an enduring power ofattorney. You can obtain legal aid or legaladvice and assistance through the Legal AidBoard, subject to a means test.

The Board’s offices are called Law Centres andare located around the country. For thelocation of your nearest Law Centre, LoCall1890 615 200.

All those who are granted legal advice and/orlegal aid must pay a fee called a contributionto the Board. The minimum contribution is€10 for legal advice and €50 for legal aid.The law centre staff will advise a person ofthe actual contribution in each individual case.

As of 1 September 2006 the new disposableincome limit of a person applying for legal aidhas been increased from €13,000 up to€18,000 per year.

The maximum allowance (this is an expensewhich the rules allow you to deduct whencalculating your disposable income) onchildcare facilities if you are working is €6,000per child per year. The maximum allowance onaccommodation costs (e.g. rent) is now€8,000 per year.

The value of an applicant’s home and itsnormal contents are excluded when assessingthe value of his/her capital resources(property), as are the value of the tools of anapplicant’s trade.

For details of other allowances, contact theLegal Aid Board or your local Law Centre.

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Free Legal Advice Centres13 Lower Dorset Street

Dublin 1LoCall: 1890 350 250

Tel: 01 874 5690Email: info@flac.ie

Website: www.flac.ie

FLAC Mission Statement:

FLAC is an independent humanrights organisation dedicated tothe realisation of equal access tojustice for all. It campaigns throughadvocacy, strategic litigation andauthoritative analysis for theeradication of social and economicexclusion.

While every effort has been made toensure the accuracy of this leaflet, it isprovided for general legal informationonly and is not intended as asubstitute for legal advice. FLAC doesnot accept any legal liability for thecontents of this leaflet. Persons withspecific legal problems should consulta solicitor.

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