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Probate & Estate Planning
Powers of Attorney
A Power of Attorney is a legal device in Ireland that can be set up by a person (the Donor) during his/her life when he/she is in good mental health. It allows another specially appointed person (the Attorney) to take actions on the Donor's behalf if he/she is absent, abroad or incapacitated through illness.
If someone is mentally incapacitated (for example, because of illness, disability or a progressive degenerative illness), all of their assets and property are normally frozen and cannot be used by anyone else unless they are jointly owned or, someone has Power of Attorney to deal with their property or money. In a larger sense, Power of Attorney is just one of the legal arrangements that you can make during your lifetime, in the event you become incapacitated or unable to deal with your affairs.
Types of Power of Attorney
There are two types of Power of Attorney allowed under Irish law:
- General Power of Attorney; which ceases as soon as the Donor becomes incapacitated and,
- an Enduring Power of Attorney; which takes effect on the incapacity of the donor.
Both cease on the death of the Donor. However, it may be difficult to prove that the Donor is dead if his/her body cannot be found, for example, as in the case of a death by drowning. Once the body is found or the Donor is declared to be "believed dead" by a court (usually after seven years have passed), the Power of Attorney (if there was one) ends and their affairs are passed on in the normal way by will or under intestacy law.
A Power of Attorney may allow the Attorney to take a wide range of actions on the donor's behalf in relation to property, business, and financial affairs. He/she may make payments from the specified accounts, make appropriate provision for any specified person's needs, and make appropriate gifts to the donor's relations or friends.
An Enduring Power of Attorney also allows the Attorney to make "personal care decisions" on the Donor's behalf once he/she is no longer fully mentally capable of taking decisions him/herself. Personal care decisions may include deciding where and with whom the Donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the Donor wants, he/she can specifically exclude any of these powers when setting up the Power of Attorney or can make the Attorney's powers subject to any reasonable conditions and restrictions.
You can appoint anyone you wish to be your Attorney, including a spouse, family member, friend, colleague, etc.
How to create a power of attorney
A general power of attorney can be created when signed either by you or at your direction and in the presence of a witness.
The procedure for creating an enduring power of attorney is much more complex.
Creating an enduring power of attorney
Because the enduring power of attorney involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you from abuses. The procedure for executing the enduring power of attorney is complex and requires the involvement of a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through and the courts have a general supervisory role in the implementation of the power.
The document creating the power must be in a particular format and must include the following:
- a statement by a doctor verifying that in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power
- a statement from you that you understood the effect of creating the power
- a statement from a solicitor that he/she is satisfied that you understood the effect of creating the power of attorney
- a statement from a solicitor that you were not acting under undue influence.
Certain people must be notified of the making of an Enduring Power of Attorney, including family members.
Who can be appointed?
An enduring power of attorney may be granted to individuals or trust corporations but may not be granted to the following people:
- people under the age of 18
- people convicted of offences involving fraud or dishonesty
- people disqualified under the Companies Acts
- an individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, child or sibling.
The Enduring Power of Attorney can only come into force when it has been registered. In order to register an Enduring Power of Attorney, the future attorney makes an application to the High Court once there is reason to believe that you are or are becoming mentally incapable. Before making this application, the attorney must notify you of his/her intention to do so. The attorney must have a medical certificate confirming that you are incapable of managing your affairs.
A notice of the attorney's application must be served on you and on a number of other people.
The role of the court
The court has an extensive supervisory role in respect of the Enduring Power of Attorney. Among other things, the court has power to give directions about the management and disposal of your property. The court may confirm the revocation of a power of attorney if it is satisfied that you were mentally competent to revoke it. The court can order cancellation of the power where it is satisfied that:
- you are mentally capable and likely to remain so
- the attorney is unsuitable
- fraud or undue pressure was used to induce you to create the power.
Scope of Authority of an Enduring Power of Attorney
The Enduring Power of Attorney may give general authority to the attorney to do anything that the attorney might lawfully do or it may merely give authority to do specific acts on your behalf.
The attorney may make certain personal care decisions - these must be made 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. 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.
The list does not include health care decisions, although the borderline between personal care and health care decisions is not always clear. However, it seems clear that the attorney does not have the power to make a decision as to whether or not a person suffering from dementia should undergo surgery.
Termination of an Enduring Power of Attorney
There are various circumstances in which an Enduring Power of Attorney ceases to have effect, for example, if the attorney fails to fulfil certain conditions.
Once the Enduring Power of Attorney has been registered, you cannot revoke it unless the court approves the revocation, even if you are, for the time being, mentally capable.