How to Make an Enduring Power of Attorney in Ireland
An enduring power of attorney is a document in which you choose, in advance, who should manage your affairs if you later become unable to manage them yourself. It is one of the few pieces of legal planning that only you can do, and only while you are still well enough to do it.
However, the way enduring powers of attorney are made in Ireland changed on 26 April 2023, and a good deal of the guidance still in circulation describes the old system rather than the current one.
This guide explains who should think about making an enduring power of attorney; what capacity means and how it is assessed; who you are permitted to appoint as your attorney; and what the process now involves.
Most people put this off, and understandably so. It asks you to picture a version of your life you would rather not think about.
There are two groups for whom it is more pressing than most. The first is anyone who has had a diagnosis that may affect their capacity in future, such as dementia, Alzheimer’s disease, Parkinson’s disease or Multiple Sclerosis. The second is anyone whose affairs would be genuinely difficult for a family member to step into: a business owner, a landlord, a farmer, or somebody with assets in more than one country.
That said, capacity can be lost suddenly and at any age, through a stroke or a serious brain injury. An enduring power of attorney is not only a document for the elderly or the unwell. It has similarities to making a will but while we all pass away eventually, we hope that our Enduring Power of Attorney will never be needed.
Capacity is your ability to understand a decision, to hold the relevant information in mind long enough to weigh it up and to communicate the decision you have reached.
Two things about it are often misunderstood. The first is that capacity is presumed. You are assumed to have capacity unless proven otherwise established, and the burden of showing otherwise falls on whoever says so.
The second is that capacity is decision-specific rather than all-or-nothing. A person may well have the capacity to decide where they would like to live while lacking the capacity to manage a share portfolio. The question is never simply whether somebody has capacity, but whether they have capacity for the particular decision in front of them, at that particular time.
Most people appoint a spouse, an adult child, a sibling or a long-standing friend to be their attorney. You can appoint more than one person, and you can specify whether they must act together or may act independently.
There are restrictions, though, and this is where older guidance can mislead. The Assisted Decision-Making (Capacity) Act 2015 disqualifies certain people from acting as an attorney. Broadly, these include a person under 18, an undischarged bankrupt, a person convicted of an offence against you or your property, a person whose own capacity is in question, and, unless they are a close relative, the owner or a member of staff of a nursing home or similar centre in which you live.
Beyond that, choose for reliability rather than for seniority or closeness. The right attorney is somebody who is likely to still be available and capable in fifteen or twenty years, who is comfortable with paperwork and money, and who will act in your best interests. Where the role is likely to be demanding, appointing two people spreads the load and provides a safeguard.
You make it yourself, while you have capacity. No court is involved and there is nothing to be granted.
Decide who, and what. You settle on your attorney or attorneys and on the powers you want to give them. An enduring power of attorney can cover your property and financial affairs, your personal welfare, or both, and you can limit or place conditions on any part of it.
The document is prepared and signed. An EPA must be in the prescribed form and completed to the letter. It is signed by you and by each attorney you have appointed.
A solicitor and a healthcare professional give statements. Your solicitor confirms that you understand what you are doing and are acting of your own free will. A registered healthcare professional confirms that you have the capacity to make the EPA.
Notice parties are told. At least two people must be notified that you are making an enduring power of attorney, and they have an opportunity to raise concerns.
It is registered with the Decision Support Service. This is the step that surprises people, because it happens while you still have capacity rather than after you have lost it. Registration does not bring the EPA into effect. It places it on the register, ready to be activated if that ever becomes necessary.
That last step is where the current system differs most sharply from the one that operated before April 2023, when an enduring power of attorney was signed, put away, and registered only later, once capacity was lost.
Nothing at all, for as long as you continue to make your own decisions. A registered enduring power of attorney sits dormant and gives your attorney no authority.
If your capacity to make particular decisions later comes into question, your attorney applies separately to the Decision Support Service to bring the EPA into force, supported by evidence as to your capacity. Only once that is complete can they begin to act.
From that point your attorney is accountable. They must act within the powers you gave them and within the guiding principles of the 2015 Act, keep proper records of the decisions they take, and report to the Decision Support Service. Their authority ends on your death, at which point responsibility for your estate passes to the executor named in your will.
An enduring power of attorney can only be made by somebody who still has the capacity to make it. This is the reason for acting sooner than feels necessary.
Once capacity has gone, you can no longer put in place an EPA. Nobody, not a spouse and not an adult child, can put an enduring power of attorney in place on your behalf. Your family’s only route would be an application to the Circuit Court for the appointment of a Decision-Making Representative: slower, more expensive, supervised by the court, and with the choice of who is appointed resting with the court rather than with you.
The work is entirely doable and we do plenty of it. But it is work that a document signed a few years earlier would have avoided.
Creating an Enduring Power of Attorney in Ireland is an important step in future planning, offering protection and peace of mind should you lose the capacity to make decisions for yourself. By setting up an EPA, you retain control over who manages your affairs and how they are handled, reducing the burden on your loved ones and safeguarding your interests.
If you are considering creating an EPA, it’s advisable to seek professional legal advice to ensure that the document accurately reflects your wishes, meets all legal requirements, and conforms to the requirements of the DSS. For expert advice and guidance, reach out to us today and let our experienced solicitors guide you every step of the way.