What is the purpose of an Enduring Power of Attorney?
The purpose of an Enduring Power of Attorney (EPA), is to appoint a person (an Attorney), to look after your financial and/or personal affairs, in the event that you no longer have the mental capacity to do so yourself.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is created by a person (the Donor), while they have mental capacity. The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations (S.I. 196/1996). The power only comes into effect when the Donor becomes mentally incapable of managing their affairs, at which time, the Attorney/s must apply for registration of the EPA.
The EPA can grant general authority to the Attorney, in relation to all of the Donor’s property and affairs, or may just give authority to do specific acts on the Donor’s behalf. Authority can also be given in relation to Personal Care decisions.
Creating an Enduring Power of Attorney
An Enduring Power of Attorney is a legal document and it is therefore advisable to seek guidance from a solicitor before creation. A statement from a doctor, confirming the mental capacity of the Donor at the time of creation is required. A solicitor must explain the effect of creation of the power to the Donor and sign a statement, confirming that the Donor understood the effect of creation of the power.
The Donor is required, when creating the power, to specify what powers the Attorney is to have.
At least 2 people (Notice Parties) must be notified of the creation of the power. At least one of the Notice Parties must be a blood relative of the Donor. If the Donor’s spouse is not an Attorney the spouse must be named as a Notice Party.
Must the Attorney be a family member?
There is no requirement for the Attorney to be a relative of the Donor. The Donor can appoint anyone to act and may appoint more than one Attorney if they wish.
Who cannot act as Attorney?
- People under the age of 18
- People convicted of fraud
- People disqualified under the Companies Act
- An individual or trust corporation who own a Nursing Home in which the Donor is residing
Registration of an Enduring Power of Attorney
The Enduring Power of Attorney only comes into effect when it has been registered. The Attorney/s must apply to the Registrar of Wards of Court for registration, once medical evidence has been obtained, confirming that the Donor is, or is becoming, mentally incapable of managing his/her affairs. The solicitor who drafted the Enduring Power of Attorney usually takes responsibility for registering the document.
Notification must be given to the Registrar of Wards of Court, the Donor and the Notice Parties, of intention to apply to have the power registered, after which, there is a five week period, in which any of the parties can object to the registration if they wish. The grounds on which an objection can be made, are listed on the Notice of Intention to Apply for Registration. Any objection should be sent in writing to the Registrar of Wards of Court.
Revocation of an Enduring Power of Attorney
An EPA can be revoked by the Donor at any stage, before an application for registration is made. Once the EPA has been registered, it may only be revoked by way of an application the High Court.
The role of the High Court
The High Court has a supervisory role in respect of an EPA, including the power to give directions about the management and disposal of the Donor’s property. An EPA, once registered, may only be cancelled with approval from the High Court.
After registration, the Wards of Court Office has no supervisory role in relation to a Donor, or an Attorney/s appointed under an Enduring Power.
SI 196/1996 (General Authority over Property & Affairs)
SI 287/1996 (Personal Care Decisions only)