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What is an Enduring Power of Attorney?

In this article, Fionnuala Cullinane, solicitor at Comyn Kelleher Tobin, explains what an Enduring Power of Attorney is and why we might need one.

Do you ever wonder or worry about what could happen to your property and assets if you were no longer able to make decisions about them?

There is a way to make provision for this. It is by way of a document called an Enduring Power of Attorney.

An Enduring Power of Attorney (EPA) is a legal document that enables you to choose a person (called ‘the attorney’) to manage your property and affairs in the event of you becoming mentally incapable of doing so.

‘The Attorney’ could be anyone that you choose to deal with your affairs, for example, a sister, brother, partner and so on.

There are many ways a person may lose mental capacity, for example, a stroke or dementia, and this can often leave a family with no means of dealing with the affairs of a loved one.

Having an EPA in place will give the creator peace of mind to know that it will not take effect until such time as you lose mental capacity, and it is registered with the High Court.

You will have the comfort of knowing that you have chosen the right person to step in to manage your financial affairs if the time comes.

Similar to making a will, there is no right age to think about creating an EPA. A person with significant or complex assets should certainly consider creating an EPA, but there is no financial threshold to creating one.

Requirements

There are specific requirements set down by the legislation for a valid EPA. These can be briefly addressed under the following headings:

  1. Attorneys;
  2. Powers;
  3. Notice Parties;
  4. Doctor’s Statement;
  5. Solicitor’s Statement.
Attorneys

You can appoint anyone you wish to be your attorney, although usually a close relative is chosen.

You can choose one attorney or more than one.  If you choose more than one, you must decide whether they are able to act;

(a)      Jointly (they must act together and cannot act separately) or

(b)      Jointly and severally (that is, they can all act together, but they can act separately if they wish).

It is possible to appoint a substitute attorney, that is, an attorney, to act in the event that the original attorney or attorneys are unable or unwilling to act.

Powers

You can give your attorneys general power in relation to all your property and affairs. If you do so, they will be able to deal with your money or property and will, for example, be able to sell your house.

You can permit the attorney to take personal care decisions on your behalf, for example, deciding where you should live.

However, an EPA does not give powers to the attorney to make healthcare decisions on your behalf.

While you may suggest to your doctor or hospital that the wishes of certain people may be taken into account, you cannot give anyone else any legal right to make decisions about your healthcare.

Notice Parties

You must give notice of the execution of the EPA to at least two people.  These people cannot be the same people that you nominate as attorneys. If you live with your spouse, one of these must be your spouse.

Doctor’s Statement

Your doctor must verify that, in his or her opinion, you have the mental capacity at the time that the document is executed to understand the effect of creating the power.

Solicitor’s Statement

After meeting with you, your solicitor must be able to state that you understand the effect of creating the power and that you are not acting under undue influence

In the event of your incapacity

The EPA does not come into force until such time as you lose capacity, and the EPA is registered with the High Court by your solicitor with a certificate from your doctor confirming that you are incapable by reason of a mental condition, of managing and administering your own property and affairs.

The EPA ceases upon death or where capacity is regained.

Conclusion

The creation of an EPA is something that should be seriously considered by each and every one of us to ensure that our interests are fully protected.

Please note that this article is written as a general guide only.

We recommend that you speak with a solicitor to begin the process of drafting an EPA.

More information

Fionnuala Cullinane is a qualified solicitor at Comyn Kelleher Tobin and can assist with this process. Please contact (021) 4626900 for further information.

Comyn Kelleher Tobin LLP (CKT) a leading Irish law firm, employing over 70 professionals in Cork and Dublin. CKT has a strong reputation for providing strategic legal advice and superb service to all our clients.

Further reading 

Here, you can find an article on protecting your farm during a marriage breakdown.

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