The benefits of having an Enduring Power of Attorney (“EPA”):
An EPA enables you to choose a person (called an “Attorney”) to manage your property and affairs in the event of you becoming mentally incapable of doing so. The alternative (i.e. should you become mentally incapacitated without having executed an EPA) is that your next of kin would need to petition the High Court to have you made a Ward of Court.
When does an EPA take effect?
If your Attorney has reason in the future to believe that you have become or are becoming mentally incapable of managing your affairs, he/she must apply to have the EPA registered in the High Court. It then becomes effective. Until then it is effectively just a statement of wishes. You may revoke the power at any time before its registration.
Who should I appoint as my Attorney?
Someone who you trust and who is competent. You may choose one Attorney or more than one. If you choose more than one, you must decide whether they are to be able to act:
- jointly (that is, they must all act together and cannot act separately), or
- jointly and severally (that is, they can all act together but they can also act separately if they wish).
If you give your Attorney general power in relation to all your property and affairs, they will be able to deal with your money or property and may be able to sell your house. They will be subject to little or no supervision under current legislation. Care should therefore be taken in their selection.
Scope of Attorney’s authority:
The legislation provides for two types of EPA: one whereby the Attorney will be responsible for “personal care” decisions only, the other being more general in nature.
A personal care decision is a decision concerning one or more of the following:
- Where and with whom you should live
- Whom you should see and not see
- What training and rehabilitation you should get
- Your diet and dress
- Inspection of your personal papers
- Housing, social welfare and other benefits
You will need to consider if you want to exclude any of the above.
When making a personal care decision on your behalf, such decision must be made by the Attorney in your best interests, must be in accordance with what you would have been likely to do and the Attorney must consult family members and carers in making these decisions. The Attorney is considered to be acting in your best interests if he/she reasonably believes that what he/she decides is in your best interests.
Gifts and remuneration:
You can specify that your Attorney has the authority to make gifts out of your assets when the EPA takes effect. We recommend that this power be limited to certain occasions (ie for birthdays/at Christmas). Your Attorney will be entitled to a refund of expenses he/she incurs. You may also instruct that the Attorney be remunerated for his/her role.
Revocation of an EPA:
You can revoke an EPA at any time before an application is made to register it. Once the EPA has been registered you cannot revoke it even if you are, for the time being, mentally capable. To revoke it an application to court is required.
What information do I need to provide?
If you wish to proceed, we will require the following information:
- The name and address of your attorney(s).
- The names and addresses of two persons who are to be notified of your creation of the EPA (and your Attorney’s intention to have it registered, should that arise). At least one notice party must be:
- Your spouse, if living with you, or
- If (1) does not apply (if you are unmarried, widowed or separated), notification must be given to a child of yours (if applicable), or
- If (1) and (2) do not apply, to any relative (that is, parent, sibling, grandchild, widow(er) of a child, nephew or niece).
Where a spouse is appointed as Attorney, the spouse may not be a notice party and you will need to notify a child, or another relative if there are no children or the child/children are also appointed as Attorneys under the power.
3. The name and address of your GP.
4. Your date of birth.
5. You may wish to name any person you would like the Attorney to consult so that the Attorney can have regard to that person’s views as to your wishes and feelings and as to what would be in your best interests. If so, please provide their name and address.