16th July 2014 Michael J Horan

Enduring Power of Attorney

WHAT IS AN ENDURING POWER OF ATTORNEY?

An Enduring Power of Attorney is a document whereby you give authority to another person to make decisions on your behalf in the event of you being unable to make decisions due to mental incapacity. Without an Enduring Power of Attorney, if you become mentally incapacitated your assets in your sole name will be frozen and cannot be used by anyone to pay bills on your behalf or to cover the cost of your care. In this situation an application would need to be made to make you a Ward of Court.

An Enduring Power of Attorney provides for another person to make decisions on your behalf when you are not in a position to do so. You get to choose who the individual will be. This is very important when it comes to managing your assets and making decisions about your care.

The Enduring Power of Attorney has no effect until such time as you are not mentally capable of managing your own affairs. A mental capacity certificate from the doctor is required to prove that you are incapable of managing your affairs.

As part of the execution of an Enduring Power of Attorney your solicitor must sign a certificate stating that they are satisfied that you understood the effect of creating an Enduring Power of Attorney. Before executing an Enduring power of Attorney you should discuss the implications with your solicitor. The Enduring Power of Attorney document itself contains a detailed explanatory guide which can be very helpful.

WHO MAY ACT AS YOUR ATTORNEY?

The person you give authority to is known as your attorney. Your attorney will only have power to manage your affairs when you become mentally incapacitated. There are no restrictions on who can act as your attorney. You should, however, chose an individual who is trustworthy and who will be in a position to manage your affairs in the event of your incapacity.

It is good idea to also appoint more than one attorney. Where you appoint more than one Attorney, you can decide whether they can act:

• Jointly (which is together) which acts as another safe guard; or
• Jointly and severally (which is together or independently). This option may be the best and is particularly useful where you have one attorney that lives abroad.

If you wish for your attorneys to act jointly at all times, then you should be aware that where two people are appointed to act jointly, then, in the case of the death, incapacity of any one of the attorneys, the remaining attorney may continue to act solely, unless the Enduring Power of Attorney provides otherwise. Therefore, if you should wish at all times to have two attorneys then you should appoint a substitute alternative attorney as well.

WHAT POWERS DO THE APPOINTED ATTORNEYS HAVE?

An Enduring Power of Attorney can give general or limited authority to your attorney. If you want to limit the powers of the attorney it is extremely important that the Enduring Power of Attorney document reflects this. The powers you give your attorney(s) are important and please do not hesitate to contact us with any queries you may have.

The Enduring Power of Attorney can cover the following areas:

1. Personal care decisions: gives the power to your attorney to make decisions such as where you should live, what treatment you should get, and so on.

2. Decisions in relation to all your property: if a general power is given this can include making decisions such as the power to sell your property, sell off shares, and other assets. You can limit this power.

WHAT IS INCLUDED IN AN ENDURING POWER OF ATTORNEY?

1. A statement by your doctor verifying that in his/her opinion you have the mental capacity at the time that the Enduring Power of Attorney was executed.
2. A statement from you that you understood the effect of creating the Enduring Power of Attorney.
3. A statement from your solicitor that he/she is satisfied that you understood the effect of creating the Enduring Power of Attorney.
4. Certain people must be notified of the making of an Enduring Power of Attorney, including family members.

The Enduring Power of Attorney ceases to have effect on your death. The attorneys will not have the power to deal with your assets at this point. On your death, your assets will then dealt with by your Executor appointed under your Will or if you have no will according to the rules on intestacy. It is common for people to execute an enduring power of attorney at the same time that they complete their wills.

WARD OF COURT

If a person becomes mentally incapacitated without a valid Enduring Power of Attorney, an application can be made to the High Court to have that person made a Ward of Court. A person becomes a Ward of Court if the Court decides that they are not capable of managing their own affairs. When this happens, a Committee is appointed to make decisions in relation the person’s affairs.

If you would like to discuss the implications of creating an Enduring Power of Attorney, please contact Michael J. Horan, Solicitor, at 071 9140774 or info@michaeljhoran.ie

MICHAEL J. HORAN, B.C.L. T.E.P. Solicitor