Powers of Attorney
POWERS OF ATTORNEY/ ENDURING POWERS OF ATTORNEY/ ASSISTED DECISIONG MAKING (CAPACITY) ACT 2015
Power of attorney is a legal device in Ireland that can be set up by a person (the donor) during his/her life when he/she is in good mental health. It allows another specially appointed person (the attorney) to take actions on the donor’s behalf if he/she is absent, abroad or incapacitated through illness.
The Assisted Decision-Making (Capacity) Act 2015 provides for new arrangements for those who wish to make an Enduring Power of Attorney. When the 2015 Act is commenced, no new Enduring Power of Attorneys will be created under the 1996 Act.
If someone in Ireland is mentally incapacitated (for example, because of illness, disability or a progressive degenerative illness), all of their assets and property are normally frozen and cannot be used by anyone else unless they are jointly owned or, someone has power of attorney to deal with their property or money.
In a larger sense, power of attorney is just one of the legal arrangements that you can make during your lifetime, in the event you become incapacitated or unable to deal with your affairs. Information to help guide you in recording and registering your preferences in the event of emergency, serious illness or death. We can assist you in drafting such documentation
Types of power of attorney
There are two types of power of attorney allowed under Irish law:
• Power of attorney which gives either a specific or a general power and ceases as soon as the donor becomes incapacitated
• Enduring power of attorney which takes effect on the incapacity of the donor
Both cease on the death of the donor. However, it may be difficult to prove that the donor is dead if his/her body cannot be found, for example, as in the case of a death by drowning. Once the body is found or the donor is declared to be “believed dead” by a court (usually after 7 years have passed), the power of attorney (if there was one) ends and their affairs are dealt with in the normal way by will or under intestacy law.
Power of attorney
A power of attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do). For example, it may allow the attorney to take a wide range of actions on the donor’s behalf in relation to property, business, and financial affairs. He/she may make payments from the specified accounts, make appropriate provision for any specified person’s needs, and make appropriate gifts to the donor’s relations or friends.
Enduring power of attorney
An enduring power of attorney (EPA) also allows the attorney to make “personal care decisions” on the donor’s behalf once he/she is no longer fully mentally capable of taking decisions themself. Personal care decisions may include deciding where and with whom the donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the donor wants, he/she 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.
You can appoint anyone you wish to be your attorney, including a spouse, civil partner, family member, friend, colleague, etc. The procedure for creating an enduring power of attorney is much more complex than that for creating a general power of attorney.
Creating an enduring power of attorney
Because the enduring power of attorney involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you 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.
The document creating the power must be in a particular format and must include the following:
• A statement by a doctor verifying that in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power
• A statement from you that you understood the effect of creating the power
• A statement from a solicitor that he/she is satisfied that you understood the effect of creating the power of attorney
• A statement from a solicitor that you were not acting under undue influence
At least 2 people must be notified of the making of an EPA, none of whom will be the attorney. One of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).
Who cannot be appointed?
An enduring power of attorney may be granted to individuals or trust corporations but may not be granted to the following people:
• People under the age of 18
• 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
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