An Enduring Power of Attorney
An Enduring Power of Attorney is a legal document which allows an individual to choose to appoint another person (usually a close family member) to look after personal, financial and property affairs in the event of the loss of mental capacity in the future.
A person who creates an Enduring Power of Attorney is referred to as ‘the Donor’ and the person appointed to act on behalf of the Donor is referred to as ‘the Attorney’.
An Enduring Power of Attorney only becomes effective if you lose your mental capacity.
Given increasing life expectancy there is a growing need for people to make arrangements which can be brought into effect in the event of mental incapacity arising at some point in the future be it as a result of Alzheimers disease, dementia or stroke.
The document creating the power must be in a particular format and be signed by both the Donor and Attorney. The procedure also requires the involvement of a Doctor to certify mental competence and a Solicitor to certify the Donor’s understanding of creating the Enduring Power of Attorney.
Notice of the creation of an Enduring Power of Attorney must be given to at least two people who are referred to as ‘the notice parties’. A notice party cannot be the Attorney under the Enduring Power of Attorney. At least one must be the Donor’s spouse if living with the Donor. If the Donor is unmarried, widowed or separated, notification must be given to a child of the Donor (if applicable) or otherwise to a relative.
You can give your Attorney general power in relation to all your property and affairs which will enable your Attorney to deal with your money or property and entitle your Attorney for example to sell your house. If you do not want to give your Attorney such wide powers you can include any restrictions that you consider appropriate. You can also authorise your Attorney to make certain personal care decisions on your behalf for example deciding where you shall live, whom you should see and not see, your diet and dress and what training and rehabilitation might be beneficial to you. In addition, you can direct your Attorney to consult with and take the advice of named persons to ensure that your Attorney acts at all times in your best interests and in accordance with your wishes.
You may appoint more than one Attorney although more than two is unusual and might ultimately prove to be unworkable and lead to practical difficulties.
If your Attorney has reason in the future to believe that you have become or are becoming mentally incapable of managing your affairs and provided a doctor certifies such mental incapacity, your Attorney must apply to have the Enduring Power of Attorney registered in the High Court. Once registered, an Enduring Power of Attorney cannot be revoked effectively unless the Court confirms the revocation. You may revoke an Enduring Power of Attorney at any time before registration.
The High Court has an extensive supervisory role in relation to Enduring Powers of Attorney. Among other things the Court has power to give directions about the management and disposal of your property. In addition the High Court can order cancellation of the power where it is satisfied that you are mentally capable and likely to remain so, your Attorney is unsuitable or in the event of fraud or undue pressure having been used to induce you to create the power.
By creating an Enduring Power of Attorney you are able to choose a person to deal with your affairs in circumstances where you are no longer capable of doing so yourself. The appointment of an Attorney simply means that there is someone to take over if or when you should suffer a loss of mental capacity and both from a practical and financial point of view it makes sense to consider the creation of an Enduring Power of Attorney. While there may be less obvious reasons to make an Enduring Power of Attorney while you are young and in good health, compared to someone who is of advancing years, no one can ever tell when an accident or illness might strike whereby the result is a loss of mental capacity. Therefore it is important not to be complacent and to ensure that you plan ahead as clearly the inability to manage ones affairs can befall anybody at any age.
Denis O’Sullivan is a Solicitor with Collins, Brooks & Associates, Clonakilty and is a Member of the Society of Trust & Estate Practitioners (STEP) and a Member of the Solicitors for the Elderly.