'Power of Attorney takes effect when a person becomes mentally incapacitated...'

John Lynch's legal column in this week's Nationalist

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John Lynch of Lynch Solicitors

What is an Enduring Power of Attorney (EPA)?
If someone becomes incapacitated through disability, illness or progressive degenerative disease, their assets could potentially be frozen.
To avoid this situation, a person, while in good health, should create an Enduring Power of Attorney (EPA), sometimes known as a “living will”.
A Power of Attorney only takes effect when a person becomes mentally incapacitated.
In the event of the donor’s incapacity to deal with his/her money and assets, the Power of Attorney transfers authority to look after the money and assets to the Attorney once specific steps are taken.
The donor is not prevented from dealing with his/her money and assets by creating the EPA; this only happens if the donor becomes mentally incapacitated.

What Powers does the appointed Attorney have?
An Enduring Power of Attorney can be very specific such as giving the Attorney a particular task to carry out, e.g. the sale of property or management of bank accounts.
Alternatively, the EPA could be very general and entitle the Attorney to do everything that you would do yourself, with your money and property.
This second type of EPA could also enable your Attorney to make personal care decisions, e.g. where a person lives, who he/she should see and not see, diet and dress.
If you want to impose certain restrictions on the Attorney, you can do so. For example, you can prohibit your house sale.

How do you appoint an Attorney?
You can appoint anyone you wish to act as your Attorney – your spouse, a family member or a friend. You can also appoint more than one person.
You can specify that they must act together – decisions must be made jointly, or it can be specified that they act jointly where they can act together, but one Attorney can also make decisions.
The choice of Attorney is a personal matter.
However, a good deal of thought needs to be given to the nomination.
You need to ask yourself, is this person suitable for the job?
Are they trustworthy, and do they have the skills to manage my affairs and make decisions for me?
If you have decided to appoint one family member, you can specify that others have to be consulted about what would be best for you and what your wishes might have been had you been able to make decisions.
You can also select an alternative Attorney in case your first choice is unwilling or unable to act.

What is the procedure for creating an EPA?
The procedure for the creation of an EPA is complex. You will have to consult your solicitor and your doctor.
Your solicitor will prepare the documentation for you after consultation with you and decide whether a specific or general Power of Attorney is more suited to your needs.
Your Attorney will need to be advised about the role and duties.
Two independent people must be notified that you have created the Power of Attorney.
Your solicitor will prepare all of this paperwork and notices and guide you through the process.
Can the person who created the EPA change his/her mind?
The EPA can be revoked at any time before it is registered, provided that the person who created the Power still has the mental capacity to do so.
If you change your mind about having an EPA or your choice of Attorney, you should immediately consult your solicitor. Your solicitor will advise on the process of revocation of the EPA.

How does the Attorney register the EPA?
The Attorney must apply to the Wards of Court Office to register the EPA if the donor becomes mentally incapacitated. It is only after it is registered that it comes into effect.
The Attorney will have to produce medical evidence of the donor’s incapacity and notice of the application to register the EPA.
The EPA must also be served on the person who created the Power.
It must also be served on the same two persons who were notified of the creation of the EPA.
The series of notifications and checks involved in the registration makes sure that the system is open and transparent and allows people to object if they are concerned that the Attorney might be acting inappropriately.
Once the EPA is registered, the Attorney can lawfully act on the donor’s behalf.
Suppose urgent decisions need to be made, e.g. in the area of personal care.
In that case, the Attorney can make decisions before the EPA is registered.
Likewise, if they need to take any action to preserve and protect the donor’s assets, they can do so before the EPA is registered.
If required, the Attorney has a duty to keep accounts and produce them to the Wards of Court Office.
Unless the donor has specified that he/she is entitled to be paid, the Attorney can only claim out of pocket expenses.

Afterthought
An Enduring Power of Attorney is as important as your Will, but many people emphasise the latter.
The Enduring Power of Attorney will prevent a situation where money and assets become frozen as friends, and family members struggle to cope with the stresses and demands of the illness.

FURTHER LEGAL ADVICE/INFORMATION
For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.
The material contained in this article is provided for general information purposes only and does not amount to legal or other professional advice.
While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.