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24 May 2022

Executors, Guardians, Trustees & Attorneys – Part 3 - By Lynch Solicitors

Executors, Guardians, Trustees & Attorneys – Part 3 - By Lynch Solicitors

What is an Enduring Power of Attorney?

If you become incapacitated through disability, illness or progressive degenerative disease, your assets become frozen.

While in good health, you should create an Enduring Power of Attorney (EPA) to avoid this situation.

This legal document only takes effect if you become incapable of managing your affairs.

The person creating the EPA (you) is called 'the Donor'.

The document sets out the extent of the decision-making you are prepared to give to a chosen person – your Attorney.

In the event of your incapacity, you can give full or limited power to manage all or some of your property and affairs (including personal welfare).

You are not prevented, in the meantime, from continuing to manage your money and assets.

The EPA only comes into effect if you cannot make decisions.

Powers

An EPA can be very specific, e.g., giving the Attorney a particular task to carry out, e.g., property sale or bank accounts management.

An EPA can also be very general and give the Attorney power to do everything you can do yourself, with your money and property.

The EPA can also enable your Attorney to make "personal care" decisions, e.g. where you live, whom you should see and not see, diet and dress and so on.

Who can be appointed as AN Attorney?

You can appoint anyone you wish to act as your Attorney, e.g. spouse, family member or friend.

You can also appoint more than one person.

The choice of Attorney is a personal matter – but 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 have the skills to manage my affairs and make decisions for me?

There is a statutory mechanism to oblige your Attorney to be answerable to the Courts and the Decision Support Service when carrying out their duties under the EPA.

What is the procedure for creating an EPA?

The procedure for the creation of an EPA can be complex.

You will have to consult us and satisfy your Doctor and a Healthcare Professional that you have the capacity to create the EPA.

The process also requires us to notify two people that you have made the EPA.

What happens if I change my mind?

You can revoke, cancel or amend the EPA at any time before it is registered.

If you change your mind about having an EPA or about your choice of Attorney, you should consult us immediately.

We will advise on the process of revocation of the EPA.

Registration of the EPA

The Attorney must apply to the Wards of Court (in time, the Director of the Decision Support Service) for registration of the EPA if you become mentally incapacitated.

The Attorney will be required to produce evidence of your incapacity.

Notice of the application to register the EPA must also be served on you and the same two persons notified of the creation of the EPA.

Once the EPA is registered, the Attorney can lawfully act on your behalf.

An Enduring Power of Attorney is as important as your Will.

So, where do you go from here - estate and succession planning?

Estate planning is planning the transfer of assets to the next generation.

While making a Will is undoubtedly the first step in planning, other issues are relevant.

It might be appropriate to make gifts to the next generation during your lifetime in certain circumstances.

For instance, you may wish to transfer your business or farm to one of your children working in the business or on the farm. You may want to give your children a benefit now as they start in their adult lives to help get them set up.

Other decision-making mechanisms

In 2015 the Oireachtas passed an Act into law that changed how we look at the issue of capacity. It will abolish the Wards of the Court system, set up a Decision Support Service as a replacement, and introduce new assisted decision-making mechanisms.

Assisted decision-making (Capacity) Act 2015 - What is it?

This Act provides for the individual's right of autonomy and self-determination to be respected through an Enduring Power of

Attorney and an Advance Healthcare Directive.

Both of these are made when a person can make decisions.

They come into effect when a person may lack decision-making capacity.

It provides for legally recognised decision-makers to support a person in maximising their decision making powers.

It places a legal requirement on service providers to comprehensively enable a person to decide on providing a range of supports and information appropriate to their condition.

It abolishes the Wards of the Court system. It provides for a review of all existing Wards to either discharge them entirely or to transition those who still need assistance into the new structure.

It establishes a Decision Support Service with clearly defined functions. The Director of the Decision Support Service will have the power to investigate complaints about any action by a decision-maker in connection to their roles as such decision-maker.

It applies to everyone and all health and social care settings

In addition to an Enduring Power of Attorney, other mechanisms will be available to you to help you if you lose the capacity to manage your affairs.

These will complement an Enduring Power of Attorney and Advance Health Care Directive when available.

Other decision-making mechanisms

  • A Decision-making Assistant
  • A Co- Decision maker
  • A Decision-making Representative
  • A designated healthcare representative
  • An attorney under an Enduring Power of Attorney
  • A Designated Healthcare Representative under an Advance Health Care Directive

Afterthought

If you don't have an EPA, you will have no one to make decisions for you of your choice if you lose the ability to do so. If you are doing an EPA, you should also take the opportunity to review your Will. When doing both, we advise that you look at all future planning needs for you and your family. It would help if you considered an Advance Healthcare Directive to deal with your health care decisions as a further step.

For further information or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344. 

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