*(the law, practice and procedure in this area is due to change following the enactment of the Assisted Decision Making (Capacity) Act 2015 – further details can be obtained by contacting the solicitors below)
An enduring power of attorney is a legal instrument that is created whilst you are in the fullness of your mental faculties and specifies how you should be cared for if it ever comes to pass that you are not mentally capable of looking after yourself. Should it come to pass that you lose your mental capacity and you do not have an EPoA, an application would have to be made to the High Court to make you a Ward of Court. This is a cumbersome and expensive exercise. We recommend that an EPoA should be considered by everyone regardless of age or health and we have developed a specific expertise in this area.
1. What is the power of attorney?
A power of attorney is a legal mechanism that a person may set up during their lifetime when they are mentally capable. There are two types of power of attorney in Ireland and they both have different functions.
A. Power of Attorney
This allows a person to nominate another to act as their attorney. General or specific powers may be given to the attorney who then may make decisions and take actions in relation to the person’s affairs. This type of power of attorney ceases when the person who created it either dies or becomes mentally incapacitated.
B. Enduring Power of Attorney
This is set up by a person during their lifetime when they are mentally capable but it has no effect until the person creating it becomes mentally incapacitated. This type of power of attorney allows the person appointed to make personal care decisions on behalf of the person setting it up, but not healthcare decisions. On setting up this type of power of attorney, any powers may be limited or excluded or restricted as desired. This type of power of attorney ceases on the death of the person who set it up.
2. What is the application process?
The application process is different for each type of power of attorney.
For a general power of attorney, there are specific forms provided for in Irish law, these must be completed by the person wishing to set up the power of attorney in the presence of a witness.
For an enduring power of attorney the procedure is more complicated, this is due to the nature and extent of the power and there are a number of safeguards in place. The document setting up the enduring power of attorney will require statements from both a doctor and a solicitor and it must follow a specific format. It is necessary to inform certain parties on the making of an enduring power of attorney, including family members.
An enduring power of attorney can only be affected when the person who created it has become mentally incapacitated and the enduring power of attorney has been registered. An application must be made to the High Court to register the enduring power of attorney. The person who created the enduring power of attorney must be notified of the intention to register by the proposed attorney. The attorney must have a medical certificate showing that the person who created the power is mentally incapacitated.
3. Who can I appoint to be my power of attorney?
You may appoint anyone you wish to be power of attorney, this would normally be a family member but maybe a friend, colleague or any person of your choosing. The person chosen must be over 18.
There are a number of groups of people who may not act as power of attorney, including, bankrupts, people convicted of offences involving fraud or dishonesty, people disqualified under the companies Acts or in individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner of the nursing home.
4. What is the effect of setting up a power of attorney?
For the general power of attorney, the effect will depend on the nature of the power of attorney you have set up in accordance with your wishes. If the power of attorney is limited to certain actions then only these actions may be carried out by your attorney. If the powers of a general nature, the attorney may act in accordance with your wishes and on your instructions. There may be no need for your attorney ever to act depending on your wishes. This type of power of attorney ceases where the person who set up the power either becomes mentally incapacitated or on their death.
5. What is the effect of setting up an enduring power of attorney?
An enduring power of attorney only becomes effective when the person who created it becomes mentally incapacitated and the enduring power of attorney is registered with the High Court. If and when this occurs, the attorney may make personal care decisions, i.e. where the person should live, decisions in relation to finances etc. However, the attorney will not be entitled to make health care decisions. This power ceases on the death of the person who created it.
6. Can I still manage my own affairs if I have given a power of attorney to someone?
Yes you can still manage your own affairs, there may never be a need for your power of attorney to act depending on your wishes. The power of attorney may be set up for your own needs so that someone may be able to act on your behalf if you are ill or abroad or unavailable in relation to a variety of matters such as dealing with your financial affairs.
7. Is there any way to remove the power of attorney?
The general power of attorney may be revoked by completing and submitting forms to the Court Services.
Once an enduring power of attorney has been registered it may be revoked but only by approval of the High Court.