Understanding 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.
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.
A General and Enduring Power of Attorney are both legal documents that appoint somebody to act for you. While they might sound and seem similar, there is a difference in how both are carried out when you lose the capacity to make your own decisions. Essentially, a General Power of Attorney ends at the point where you lose decision making capacity; and this is where an Enduring Power of Attorney starts.
This catches people out. A general power of attorney is quicker and simpler to put in place, so it is sometimes signed in the belief that it will cover a future illness. It will not. It stops working at the exact moment you would need it most.
A general power of attorney gives your appointed attorney the authority to do anything you could lawfully do through an attorney yourself.
It can be used as soon as it has been signed and is valid only while you still have capacity. It does not need to be registered and does not need to be supervised. It’s normally limited to decisions about property and financial affairs.
General Powers of Attorney are typically used when you are capable of making your own decisions but cannot be present to make them, such as signing documents relating to a property sale while you are overseas or a business decision that needs attention and you cannot be present. You can revoke it at any time while you have capacity, and it ends on your death.
An Enduring Power of Attorney could be viewed as the opposite arrangement. Since 26 April 2023 new EPAs are made under the Assisted Decision-Making (Capacity) Act 2015, and exist to ensure that a trusted person has authority at the point when you can no longer make decisions.
An EPA must first be registered with the Decision Support Service while you still have decision making capacity, and your the attorney must apply to bring it into force separately once your ability to make certain decisions has come into question. Until both of these steps are complete your attorney has no authority at all.
An EPA requires a statement from a solicitor and a statement from a registered healthcare professional about your current mental capacity, and at least two other parties must be notified that you are making it. Once it is in force, your attorney is answerable to the Decision Support Service, so must keep a proper record of the decisions taken on your behalf and must report to the DSS when required.
An EPA arrangement can include decisions on how to manage your health and welfare, as well as your property and affairs.
You don’t necessarily need one over the other. Both can be in place at the same time with good reason. A general power of attorney solves a problem you have now, whereas an enduring power of attorney solves a problem you may have later. However, if your concern is what happens should your health decline then you will need to make an enduring power of attorney, not a general 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:
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.
Setting up an Enduring Power of Attorney involves several steps, each designed to ensure that the document is created legally and reflects your intentions.
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.
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.
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.
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.
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.
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:
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.
A Will and an enduring power of attorney serve two entirely different purposes, and neither one covers the gap left by the other.
If you lose your decision-making capacity without an EPA in place, your family can’t simply step in and manage your affairs for you, no matter what your Will says or how clearly you had expressed your wishes.
Once your capacity has diminished, an enduring power of attorney cannot be created on your behalf. Instead, an application must be made to the Circuit Court under the Assisted Decision-Making (Capacity) Act 2015 for the appointment of a Decision-Making Representative.
The court will usually prefer to appoint a family member, but the decision will be at their discretion. Whoever is appointed will then be required to report to the Decision Support Service on how they are managing your affairs.
It is also worth knowing what an attorney cannot do. A person appointed under an Enduring Power of Attorney has no authority to make or change your Will, and they have no authority or say in distributing your estate. When you die, their role ends and the responsibility passes to the person as executor in your will – this person will usually need to obtain a Grant of Probate first.
Often, a person may have both documents (a Will and an EPA) and also what is known as an Advance Healthcare Directive. This keeps a legal record of your wishes for medical treatment and intervention, including any treatment you might wish to refuse.
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.
A power of attorney is a legal document that gives another person the authority to act on your behalf. In Ireland, your attorney does not have to be a solicitor and the word carries no professional meaning. Your attorney is simply a trusted person you have chosen to act in your place.
An ordinary power of attorney operates only while you still have the capacity to make your own decisions, and ends automatically if you lose that capacity. For this reason, it tends to be used for practical, time-sensitive decisions or actions, such as completing the sale of a property while you are living abroad.
An enduring power of attorney, or EPA, is a legal power that authorises a trusted person to act on your behalf if you lose the capacity to make certain decisions in the future. It must be made while you are still able to make your own decisions and it is then held in reserve. An EPA only comes into force if and when your capacity to make certain decisions comes into question. Enduring powers of attorney in Ireland are overseen by the Decision Support Service.
This will depend on the powers you write into the document. An EPA can cover your property and financial affairs, your personal welfare or both. You can also add restrictions or conditions to any part of it.
Depending on what’s written into your EPA, your attorney may be responsible for making decisions around your finances or property, for example, managing your bank accounts, collecting pension or social welfare payments, paying bills or dealing with Revenue. Your attorney may also make decisions regarding your personal welfare or care arrangements under an EPA.
Setting up an Enduring Power of Attorney involves several steps designed to ensure the document is created legally and reflects your intentions. It must be created when you still have decision making powers.
We will also send notifications to your ‘notice parties’.
Before the EPA can be registered, you must notify your spouse or partner and all of your children that the EPA has been created. If there are not at least three people in that category, then the requirement is to notify at least two people. These are known as notice parties. This provides an opportunity for notice parties to raise objections or concerns about the creation of the EPA.
Once signed and submitted, the completed EPA is then registered with the Decision Support Service while you still have capacity. Registration is not the same as the EPA taking effect. It sits on the register until your attorney later applies to have it come into force.
No. An enduring power of attorney can only be made by a person who still has the capacity to make it. Once capacity has gone, an EPA cannot be created on behalf of someone else. If a person already lacks capacity, the correct approach may be to submit an application for the appointment of a Decision-Making Representative under the Assisted Decision-Making (Capacity) Act 2015.
Yes. An EPA ends on the date of your death and has no role in the administration of your estate. At this point, responsibility passes to the executor of your Will and the probate process begins. If you have not made a will, the rules of intestacy apply.
At Patrick J Farrell & Company Solicitors, we understand the difficulties in navigating the legal challenges related to wills and probate. With a legacy founded by Patrick J. Farrell and carried forward by a dedicated team, we have been advocates for justice for over four decades. Our commitment to putting our clients’ interests first, combined with our extensive legal expertise, makes us the ideal partners in your pursuit of justice.
From the moment you walk through our doors to the resolution of your case, you’ll be treated with the utmost courtesy, respect, and understanding. Choose us – where your well-being is our top priority. Reach out to us today and let our experienced solicitors guide you every step of the way.
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