A Guide through the Enduring Power of Attorney

What is an EPA?

An enduring power of attorney (“EPA”) is a legal instrument which allows a person (“donor”) give another person (“attorney”) the power to deal with the donor’s assets and affairs in the event that the donor loses mental capacity (i.e. the ability to make certain financial and personal care decisions). EPAs are governed by the Powers of Attorney Act 1996.

Advantages of an EPA

EPAs should not be considered solely for the elderly, as there are many advantages of having in place an EPA, which apply to everyone:

  • EPAs are a more cost efficient and straightforward alternative to the Wards of Court system, which is the only other current alternative to an EPA, in the event of a person’s mental incapacity;
  • Having in place an EPA can help to prevent disagreements between family in relation to the donor’s property and affairs and in relation to personal care decisions; and
  • An EPA allows the donor to decide who will have control of their property and affairs and make personal care decisions on their behalf, in the event of subsequent mental incapacity.

Requirements of an EPA

The donor must be 18 years or over and have mental capacity to understand the effect of putting an EPA in place at the time of executing the EPA. The donor’s solicitor and their doctor must both sign statements, which are included in the EPA, stating that they are satisfied that at the time the EPA was executed (i.e. signed by all parties to the EPA) by the donor, they had the capacity to understand the effect of creating the EPA.

The donor can appoint one or more attorneys under the EPA, although it is advisable to appoint at least two attorneys, if possible, and / or a substitute attorney. The attorney should be a person that the donor trusts completely and believes is suitable to manage the donor’s property and affairs, if required. The role of the attorney is considered a very personal role and therefore trust is paramount, particularly given that the donor may be in a vulnerable position should the EPA ever need to be activated on subsequent mental incapacity.

The authority granted by the EPA can be as broad or as narrow as the donor wishes. The EPA can give the attorney the power to deal with the donor’s financial and property affairs and / or to make personal care decisions. The donor can impose such restrictions on the powers granted to the attorney as they wish e.g. the EPA can include a restriction that the attorney may not have the power to sell the donor’s house.  However, it is worth noting that any restriction to the attorney’s power may later necessitate a Wards of Court application if the restriction needs to be varied for any reason e.g. if the donor’s house needs to be sold to provide for ongoing care costs, if the nursing home support scheme is unavailable.

Once the EPA has been executed i.e. signed by the donor and the attorney(s), including any substitute attorney(s), notice of its execution must be given to at least two people (who are not Attorneys appointed under the EPA). Provided they have not been appointed an attorney under the EPA, one of the notice parties must be the donor’s spouse / civil partner, if living with the donor. If the donor is unmarried, widowed or separated, then at least one of the notice parties must be a child or failing which, another close relative of the donor.

As long as the donor has mental capacity to manage their own property and affairs, the attorney cannot act on foot of the EPA. The EPA will not take effect unless and until such time in the future as the attorneys believe, with the support of written medical opinion, that the donor is or is becoming incapable of managing their own property and affairs due to a mental incapacity. In that event, the attorney must then give notice to the donor and the two or more notice parties nominated in the EPA that they intend to apply to the High Court to have the EPA registered. Once the EPA has been registered it cannot then be revoked, on subsequent recovery of the donor, unless the court confirms and approves its revocation. Before registration of the EPA by the attorney, the EPA may be revoked at any time by the Donor, provided they have mental capacity to understand the effect of doing so.

How we can help

If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Trea McGuinness in the Private Client Department of BHSM on 01 440 8300 / tmcguinness@bhsm.ie.

This article is for general information purposes.  Legal advice must be obtained for individual circumstances.  Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.

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