Power of Attorney

Enduring Power of Attorney

There are two kinds of power of attorney – a general or “common law” power of attorney and an enduring power of attorney. A general power of attorney is a document in which you authorise someone else to do something on your behalf. It could be an authorisation to sell property while you are out of the country or to manage your money while you are away. The power must be granted in writing, but there are no other formalities required. You are the donor of the power and the person you appoint is the attorney. You do not need to consult a lawyer, but it may be advisable to do so. You must have the legal capacity to give the power of attorney. It lasts until you withdraw it. It no longer has any effect if you become mentally incapable, if you marry/enter a civil partnership, or if you are declared bankrupt. An enduring power of attorney (EPA) contains a statement by you (the donor) that you intend the power to operate if you become mentally incapable. An EPA must meet certain legal requirements. The main advantage of an EPA is that it provides a means for you to organise your affairs in advance of and in spite of mental incapacity and to appoint someone you trust to make decisions on your behalf if you become incapable of making them yourself. There are two stages to an EPA and there are strict formalities at both stages. The first stage is the creation of the EPA. Your solicitor and doctor must be involved. When the EPA is created, nothing happens unless or until you become mentally incapable. The EPA only comes into effect if you become incapable. At this stage, the EPA must be registered and can only come into effect when certain procedures have been followed. The courts have a general supervisory role in the implementation of the EPA. These formalities and procedures exist in order to ensure that your wishes are carried out and that you are not exploited.

How to Create an EPA

You must go to a solicitor who will draw up the EPA in the required format. The EPA 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 created 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 and that you were not acting as a result of fraud or undue pressure
  • a statement from the attorney that he/she understands the duties and obligations of an attorney and the requirements of registration
A number of people must be notified of the making of an EPA, including family members.
People who may be appointed attorneys
The attorney appointed under the EPA may be an individual or a trust corporation, but cannot be one of the following groups:
  • 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, child or sibling
If the attorney is your spouse or civil partner and you subsequently separate, divorce, or dissolve the civil partnership, the EPA is no longer valid.

How the EPA comes into force

The EPA can only come into force when it has been registered. This can only happen if you are becoming mentally incapable. The attorney makes an application to the Registrar of Wards of Court once there is reason to believe that you are or are becoming mentally incapable. Before making this application the attorney must notify you of his/her intention to do so. The attorney must have a medical certificate confirming that you are incapable of managing your affairs. A notice of the attorney’s application must be served on you and on a number of other people including the people who were notified of the creation of the EPA (any of the notice parties may object to the registration of the EPA). The court has an extensive supervisory role in respect of the EPA. Among other things, the court has power to give directions about the management and disposal of your property. The court may confirm the revocation of a power of attorney if satisfied that you were mentally competent to revoke it. The court can order cancellation of the power where satisfied that:
  • you are mentally capable and likely to remain so
  • the attorney is unsuitable
  • fraud or undue pressure was used to induce you to create the power

What an attorney can do

The EPA may give general authority to the attorney to do anything the attorney might lawfully do or it may merely give authority to perform specific acts on your behalf. The attorney may make certain personal care decisions – these must be made in your best interests, must be in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions. A personal care decision is a decision concerning one or more of the following:
  • where and with whom you should live
  • whom you should see and not see
  • what training and rehabilitation you should get
  • your diet and dress
  • inspection of your personal papers
  • housing, social welfare and other benefits
The list does not include health care decisions, so the attorney does not have the power to give consent to medical treatment or to decide whether medical or surgical treatments to prolong life should be given. The new Assisted Decision-Making (Capacity) Bill 2015 expands the attorney’s authority to include health care decisions. For more information about Enduring Power of Attorney, consult the following: FLAC Solicitors for the Elderly Ireland – FAQs on EPAs
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