Enduring Power of Attorney - thinking ahead

We have often written about Wills and their importance to set out your wishes. You can read more of our coverage of Wills by visiting www.lynchsolictors.ie/blog.
An Enduring Power of Attorney (called EPA) is complementary to your Will.
An EPA will outline what happens should you become incapacitated and are no longer able to look after your affairs.

What is an Enduring Power of Attorney?
If someone becomes mentally incapacitated (for example, because of illness, disability, or a progressive degenerative illness), all of their assets and property are normally frozen. This means that family members who may wish to deal with the cost of your care will not have access to your bank accounts.
An Enduring Power of Attorney prevents this from happening – it is often called 'a Living Will'.
It can be an extremely powerful document. It significantly bypasses the hurdles and problems your family could face when trying to deal with your affairs should you become incapacitated.
It is a legally binding document that avoids the need to make someone a Ward of Court.
It appoints a named individual or individuals (usually a close family member) to look after both your personal and financial affairs.
It is important to understand that an EPA is a two-step process and the second step may never come to pass. The EPA will not come into effect unless or until you lose your ability to manage your affairs.

What Powers Does An Attorney Have?
When you are considering your EPA, and after you have decided on your Attorney, you must also consider the scope of the power you are going to give your Attorney.
There are usually three variations on the power you can give your Attorney:
Your financial and property affairs, or;
Your health and personal affairs, or;
All of your affairs (financial, property, health & personal affairs).

You may give your Attorney as much or a little power as you choose, for example:
What to do with your house or investment properties
Where you will live
Who you will live with
Your diet and dress
Other very personal decisions which directly affect you and your future care.
It may be advisable to nominate another person you would like the Attorney to consult with so that the Attorney can take that person's views into account.
It is also a good idea to nominate backup Attorneys.

Financial & Property Affairs
A general power grants your Attorney free rein to deal with your assets in whichever way they choose, subject to the actions being in your "best interests".
You should also remember that, at present, once registered, your Attorney will have little or no supervision.
How Many Attorneys Can I Have?
You may choose one Attorney or more than one.
If you choose more than one, you can specify how they make decisions:
Jointly - that is, they must all act together and cannot act separately, or
Jointly and severally - they can all act together, but they can also act separately if they wish.
Can An Attorney's Registration Be Refused?
An application may be refused if:
The Power created by the document is no longer valid
The Donor (you) is not mentally incapacitated or not capable of becoming mentally incapacitated
The Attorney is not a suitable person to fulfil the role
Fraud or undue influence was used to induce the Donor (you) to create the power

Is There Any Restriction on Who I Can Appoint?
An Enduring Power of Attorney may be granted to individuals or trust corporations but may not be granted to:
People under the age of 18
Bankrupts
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, civil partner, child or sibling.
Many reasons might justify you making an Enduring Power of Attorney.
You may have a history of mental illness, Alzheimers, or pre-senile dementia in the family. You may be involved in an accident, or you may have an illness that will leave you unable to look after yourself.
However, the most obvious reason is that we do not know what lies ahead.
Afterthought
If you don't have an EPA, you will have no one to carry out your wishes in accordance with your wishes. If you are doing an EPA, you should also take the opportunity to review your Will. When doing both, we would also advise that you look at all future planning needs for you and your family.