Enduring Power Of Attorney

 

Enduring Power of Attorney (EPA) is a legal instrument in Ireland that allows an individual (known as the donor) to appoint one or more persons (known as attorneys) to manage their affairs, including financial and property matters, in the event that they become mentally incapacitated or unable to make decisions for themselves.  The relevant legislation  is as directed by  Assisted Decision-Making (Capacity) Act 2015.

The EPA must be created while the donor is still mentally capable, and it comes into effect only if and when the donor becomes incapable of making decisions for themselves. It does not give the attorney the power to make decisions on the donor’s behalf while the donor is still mentally capable.

The EPA is a powerful document, and it is important that the donor fully understands the implications of creating an EPA before they sign it. For this reason, a solicitor must explain the implications of creating the EPA to the Donor and sign a statement, confirming that the Donor understands the effect of the creation of the power. They must also appoint a doctor to confirm the Donor’s mental capacity at the time of creation of the EPA. Capacity is affected by illnesses such as dementia and Alzheimer’s, and sometimes by a serious injury to the brain.

When creating the power, the Donor must specify what powers the Attorney is to have.

At least 2 people (Notice Parties) must be notified of the creation of the power. At least one of the Notice Parties must be a blood relative of the Donor. If the Donor’s spouse is not an Attorney the spouse must be named as a Notice Party.

There is no requirement for the Attorney to be a relative of the Donor and can choose more than one person to be their attorney. If more than one, the Donor has to write down whether they want their attorneys to make decisions separately, or together, or both. They cannot appoint the following.

  •  People under the age of 18
  •  Bankrupts
  • People convicted of fraud
  • People disqualified under the Companies Act
  • An individual or trust corporation that owns a Nursing Home in which the Donor is residing

It is important to note that an EPA can be revoked by the Donor at any time while they are still mentally capable. Once the EPA document is drafted, the donor will need to sign it in the presence of a solicitor and a witness. The witness must also sign the document, and their role is to confirm that you signed the document voluntarily and understood its implications. When completed the EPA only fully comes into force when it has been registered with the Decision Support Service (DSS) as directed by  Assisted Decision-Making (Capacity) Act 2015.

When the DSS receives an enduring power of attorney, they will review it and provide the person and their attorney with a certified copy of the agreement. This will confirm that the attorney has the legal authority to make certain decisions on behalf of the person. The certified copy can be requested by anyone who may have dealings with the attorney. The DSS monitors an EPA when it has been registered. They monitor decisions made by the attorney as part of the arrangement. The attorney must submit a written report to DSS every year. Each report must include any details of costs, expenses or money paid to the attorney in relation to their duties.

The  DSS maintains a register of enduring powers of attorney. Certain individuals and organizations, such as banks, lawyers, and doctors, have access to search this register. Family members and caregivers, who have a valid reason, may also request to search the register. They will confirm the existence of an agreement and be provided with a certified copy of the agreement if necessary.

Registering or varying an EPA costs €30. There is a cost €90 for revoking an EPA and €90 for notifying an EPA to bring it into force.

You may also have to pay your doctor or another healthcare professional to get a capacity assessment and your lawyer.