What is a Power of Attorney?
A Power of Attorney is an authority in writing granted by a person (the donor), which allows another person (the attorney) to represent the donor or to act in the donor’s behalf either generally or for specific purposes. It comes to an end if the donor becomes mentally incapacitated. Powers of Attorney are commonly used where the Donor expects to be out of the country or to be unavailable for a period of time. Powers of Attorney can be limited to use for specific purposes or may confer general powers. Specific Powers of Attorney are very limited in authority and frequently they are used to allow the Attorney to complete particular documentation on behalf of an absent Donor. General Powers of Attorney are normally granted to close family members and would normally allow the Attorney to do or sign anything that the Donor otherwise could do or sign.
Powers of Attorney come to an end if the Donor becomes mentally incapacitated.
An Enduring Power of Attorney (EPA) on the other hand is a legal document by which one person (the donor) states that another person (the attorney) will have power to act in the future on the donor’s behalf in the event the Donor becomes mentally incapable.
The EPA allows the Attorney full an unrestricted ability to deal with the property, business and financial affairs of the Donor. In addition to these powers your Attorneys will have the power to make "personal care decisions" on your behalf in the event that you are no longer fully mentally capable of taking decisions yourself. Personal care decisions may include deciding where and with whom you will live, who you should see or not see and what training or rehabilitation you should get. However, if you wish, you 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.
Because of the fact that the enduring power of attorney involves the transfer of considerable powers from the Donor to another person, there are a number of legal safeguards to protect the Donor 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.
An EPA will not be effective until the Original Document is deposited with and registered in the office of the High Court.
Any person over the age of eighteen should be encouraged to make an Enduring Power of Attorney. There is no time limit and once made they remain ready indefinitely to be used only if required. It is similar to taking out an insurance policy to cover an event which may or may not happen in the future.
Creating an Enduring Power of Attorney (EPA)
There are a number of steps to creating an EPA:
- As already mentioned the services of both a doctor and a solicitor are required to create it. The solicitor must be satisfied that the EPA is not being created as a result of fraud or undue pressure and the doctor is required to provide a Statement verifying that at the time the document was drawn up, the donor had sufficient mental capacity and understood the effect of creating the power.
- The donor must make a statement that they have understood the effect of creating the power. These statements act as legal safeguards to ensure that the EPA is being created whilst the donor is in full legal knowledge of what is involved and that there is no pressure on them to create this power.
- The Attorney must sign a written acknowledgment stating that they understand the duties and obligations of an Attorney and the requirement of registration.
Notice of the making of the EPA must be given to at least two persons by the Donor at the time that it is created. One of these people must be the spouse of the donor is they are living together. If the donor is unmarried, separated or widowed then one of the two people that must be notified is their children if they have any and if not then a relation such as a parent, sister, brother , nephew or niece. If the attorney later applies to register the EPA then these named persons must be told of this in writing.
Who can be appointed as an Attorney?
Any individual over the age of eighteen years of age is capable of acting as an Attorney unless they are a bankrupt or have committed an offence involving fraud or dishonesty or an offence against the person or property of the Donor. Persons disqualified from acting as directors under the Companies Act cannot act as Attorney nor can an individual, a trust or a corporation who owns a nursing home in which the donor resides. Recent family law legislation has also provided that the spouse of the Donor cannot act if they have a judicial separation or a separation agreement in place or if they have been divorced. It is advisable to appoint more than one person to act as your attorney if possible in the event of your Attorney dying, becoming incapacitated or unsuitable to act as Attorney in the future.
As already mentioned the EPA will only come into operation when it has been registered. To affect this registration then the appointed attorney must make an application to the Office of the Wards of Court when he/she sees that the Donor is becoming mentally incapable and must be accompanied by a medical certificate confirming that the Donor is no longer capable of managing their own affairs. Notice of the intention to register the EPA must be sent to the Donor and the two notice parties named in the Original EPA. They then have 5 weeks from the date they receive this notification to lodge an objection in the Wards of Court Office , for example, if they feel that the Attorney is unsuitable or where fraud or undue pressure is involved.
The EPA can be revoked by the donor at any time before an application is made for registration. The EPA remains valid until either:
- The death of the Donor or alternatively
- The High Court revokes it for example on the Donor’s recovery.
Differences Between Ordinary and Enduring Powers of Attorney
Comes into effect immediately
Does not come into force until it is registered in the Wards of Court office
No Solicitor required to complete
Solicitors Certificate of completion required
No medical evidence required at time of making
Doctor’s Certificate of Completion required
Any Adult can be an Attorney
No Former Spouse, Criminal, Bankrupt of nursing home proprietor can be Attorney
Not necessary to notify anyone that a POA has been signed
Notice of creating EPA must be given to two persons at the time of its creation
Donor does not have to see written warning regarding effects of Power
Donor must read and acknowledge that written warning has been read and understood.
Attorney does not need to sign the POA
Attorney must sign the EPA
Attorney’s powers and authority limited to what is contained in the POA
Court may extend the Attorney’s authority if required
Attorney not given written warning of powers
Attorney must read the written warning
Attorney can retire at any time
Attorney cannot retire without the Court’s consent
Does not have to be registered
Not effective until it is registered in the Office of the Wards of Court
Becomes Invalid in the event of the Mental Capacity of the Donor
Remains valid until the death of the Donor
Can be revoked at the request of the Donor
Once registered it can only be revoked by Court Order or on the death of the Donor
Relatives do not have to be notified that POA has been signed
Relatives must be notified that the EPA has been signed
Relatives generally cannot object
Relatives can object to registration of the EPA
Attorney not able to benefit personally
Attorney can take limited benefits
Attorney can appoint substitute attorney
Attorney cannot be substituted
If you have any further queries, please contact any of the following from our Wills, Probate & Estate Management group:
- Michele Caulfield, Senior Associate Solicitor
14 February 2013