Understanding Enduring Power of Attorney in Ireland

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Understanding Enduring Power of Attorney in Ireland

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Understanding Enduring Power of Attorney in Ireland

understanding the process for enduring power of attorney in ireland

An Enduring Power of Attorney (EPA) is a legal document that allows you to appoint a trusted individual, known as an attorney, to manage your personal, financial, and property affairs if you lose the mental capacity to do so in the future. This arrangement provides peace of mind by ensuring that your affairs are handled according to your wishes, even if you become unable to make decisions yourself.

This article outlines the key aspects of setting up an Enduring Power of Attorney in Ireland, including the legal process, the roles and responsibilities involved, and why it is an important tool for future planning.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal arrangement made under the Assisted Decision Making Capacity Act 2015 and the Powers of Attorney Act 1996, which comes into effect if and when you lose mental capacity. Unlike a general power of attorney, which is automatically revoked if you lose capacity, an EPA remains valid and continues to operate.

The person appointed as your attorney can be a family member, friend, or professional such as a solicitor or accountant. The attorney’s primary role is to make decisions on your behalf, ensuring that your affairs are managed in your best interests. You can also appoint more than one person.

The EPA is distinct from wardship or a capacity application, where the court assumes control over an individual’s affairs, or appoints a Decision-Making Representative. Instead, it allows you to decide in advance who you trust to make these important decisions, giving you more control over your future.

Why Set Up an Enduring Power of Attorney?

Setting up an EPA is crucial for anyone who wants to ensure that their personal, financial, and property affairs are managed by a trusted person if they lose mental capacity. It is particularly important for:

Older individuals who wish to plan for the possibility of dementia or other age-related conditions
Those with a family history of mental illness or conditions that affect cognitive abilities
Business owners or those with complex assets that need active management.
Anyone who wants to have a say in who will manage their affairs if they are no longer able to do so

An EPA helps avoid potential disputes among family members, reduces the need for court intervention, and ensures that your affairs are handled smoothly in accordance with your wishes.

How to Set Up an Enduring Power of Attorney in Ireland

Setting up an Enduring Power of Attorney involves several steps, each designed to ensure that the document is created legally and reflects your intentions.

Choosing Your Attorney

The first step is to choose who will act as your attorney. You can appoint one or more individuals, and you can specify whether they must act jointly (together) or jointly and severally (individually or together). It is crucial to choose someone you trust implicitly, as they will have significant control over your affairs if the EPA is activated.

You can also appoint substitute attorneys in case your first choice is unable or unwilling to act when the time comes.

Specifying Powers and Limitations

The EPA can grant your attorney wide-ranging powers, including managing your property, finances, and personal care decisions. However, you can also impose specific limitations on what your attorney can and cannot do. For example, you may allow them to handle your finances but exclude decisions related to your personal care (eg, where you should live).

It is advisable to clearly outline any restrictions or guidelines within the document to ensure your wishes are respected.

Creating the EPA Document

With the coming into force of the Assisted-Decision Making (Capacity) Act of 2015, all new Enduring Powers of Attorney must be made through the Decision Support Service (DSS). The DSS is a state body that oversees decision-making arrangements, such as EPAs. EPAs are drawn up using the DSS’ online service and your solicitor can guide you through this process, ensuring that the document meets all legal requirements.

The document must also be signed by two witnesses. Your solicitor and a medical practitioner must certify that you are capable of putting the document in place.

Notifying Relevant Parties

Before the EPA can be registered, it is necessary to notify your spouse or partner and all of your children. If there are not at least three people in that category, then the requirement is to notify at least two people, known as notice parties, that the EPA has been created.. The purpose of this notification is to provide an opportunity for any objections to be raised if there are concerns about the creation of the EPA.

Registration of the EPA

Once an EPA has been signed and submitted to the DSS, it must be registered before it can be used. When your attorney believes you have lost capacity, the attorney then applies to the Decision Support Service to activate the document.

During this activation process, the notice parties must be informed once again, and they have the right to object if they have valid concerns. If no objections are raised, the EPA is activated, and your attorney can then act on your behalf.

The Role and Responsibilities of an Attorney

An attorney appointed under an EPA has a fiduciary duty to act in the best interests of the donor (the person who made the EPA). This duty includes managing finances responsibly, making decisions in line with the donor’s wishes, and avoiding conflicts of interest.

Some key responsibilities of an attorney can include:

Managing the donor’s property and financial affairs
Making personal care decisions, if specified in the EPA
Keeping proper records of all transactions and decisions
Acting in good faith and with due care

Attorneys must adhere strictly to the terms outlined in the EPA, and they cannot act beyond the authority granted to them. If they do, they can be held legally accountable. Attorneys are subject to oversight by the DSS and must provide reports on a regular basis. Your solicitor can assist in preparing and submitting these reports.

What Happens if There is No Enduring Power of Attorney?

If you lose mental capacity without an EPA in place, your family may need to apply to the court to manage your affairs. This process, known as a capacity application, can be lengthy, expensive, and stressful for all involved. Additionally, it removes your choice in deciding who will manage your affairs, as the court will appoint a suitable person or a professional from its panel to act instead.

Having an EPA avoids this situation and ensures that your affairs are managed in a way that aligns with your preferences.

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.

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