Most of us know how important it is to draft a will, to make sure we have plans in place for the future. But many people aren’t aware that there is another document available that can help protect us during our lifetime.
That document is called an enduring power of attorney (EPA), in which you name a person to look after your financial, property and personal affairs if you become incapable of doing so yourself. A survey carried out by RedC Research & Marketing and Safeguarding Ireland indicates that only 6% of Irish people have an EPA in place, compared to 30-40% in Europe.
Why are we talking about this now? Because the law on EPAs is about to change. From April 26th, it will no longer be possible to put an EPA in place under the current rules. However, EPAs signed before that date will still be valid and subject to the current law, so there’s still time.
Let’s look at how this change might affect you — and what you need to do to make sure you put the right protection in place now.
What is an enduring power of attorney (EPA)?
An enduring power of attorney (EPA) is a legal document where you (the donor) appoint someone to manage your property and affairs, and to make personal care decisions on your behalf, if you are no longer capable of doing so because of mental incapacity.
A personal care decision might include the following:
- Where you should live — and with whom
- Who you should see and not see
- What training and rehabilitation you should avail of
- What you eat and how you dress
- Control over your personal papers
- Activities or changes relating to housing, social welfare and other benefits
It doesn’t generally include health care decisions, although this can also be arranged via an advanced health care directive. A qualified enduring power of attorney solicitor can advise further on this.
Under the current law (the Powers of Attorney Act, 1996), when you sign an EPA nothing changes in the short term. The EPA cannot be used until you have lost your mental capacity and the EPA is registered with the court. In the meantime, provided you have mental capacity, you are free to revoke or change your EPA as you wish.
What will the new law change?
The Assisted Decision-Making (Capacity) Act 2015, as amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022, will significantly alter the way EPAs are drafted and managed in Ireland. These changes include:
1. Required registration
The new law says that registration with the newly-formed Decision Support Service (DSS) must occur within three months of signing the EPA. At the moment, an enduring power of attorney in Ireland is registered with the Registrar of the Wards of Court only when there is reason to believe that you are or are becoming mentally incapable of making your own decisions.
2. Increased costs
At HOMS Assist, we’re often asked how much does it cost to register an enduring power of attorney. The answer to this is that it’s about to increase. This registration process and other changes requiring extra paperwork will mean the cost of preparing an EPA will rise. In addition to this, a registration fee will be payable to the DSS. These extra charges can be avoided if an enduring power of attorney is drawn up and signed prior to the 26th April.
3. Limited amendments
Controversially, after registration of the EPA with the DSS, you will only be able to change or revoke it under certain conditions. You cannot vary the EPA in the first six months after it has been registered. Furthermore, if you decide after varying the EPA you would like to make additional changes, you must wait 12 months from the date of the previous variation before you can put the new change in place, unless the DSS agrees otherwise.
In addition, you must formally notify your named attorney of any variation or revocation, which is not something you are required to do under the current law.
Who should I choose as my attorney?
The first step when considering an EPA is to select a person who will be appointed as your attorney. This isn’t your solicitor — in these circumstances, an attorney is someone you will trust to make decisions about your property, finance, and personal welfare if you are unable to do so yourself.
You can grant an enduring power of attorney in Ireland to individuals or trust corporations. However, they cannot include:
- People under the age of 18
- People who have been declared bankrupt
- People who have been convicted of offences involving fraud or dishonesty
- People who have been convicted of an offence against you
- People who would ordinarily be 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
In order to avoid a potential risk of adult abuse, problems with the enduring power of attorney, and any conflict within your family, it’s important you choose a person who is responsible, trustworthy and in agreement with your plan.
How do I put an enduring power of attorney in place now?
Putting an EPA in place is just as important as drafting a will, and shouldn’t be limited to elderly and vulnerable people — we should all prepare as best we can while we can. If you do not have an EPA in place you may not be adequately protected against exploitation should you lose your mental capacity in the future. Safeguarding Ireland Chairperson Patricia Rickard-Clarke says that an “EPA gives legal clarity and reduces confusion, tension and problems in families, including financial abuse and misuse of property and personal welfare.”
She also points out that the term ‘next of kin’ doesn’t have legal authority, and doesn’t afford any special powers to that person or those people. So while it might be mentioned in movies, it won’t count for much in reality if you need formal assistance with personal decisions.
The new law governing EPAs (The Assisted Decision-Making Capacity Act 2015) is due to commence on 26th April 2023. If you wish to put an EPA in place now and avoid the extra costs and more restrictive rules under the new regime, you must arrange to draft and sign an EPA before then.
While time is tight, it is possible to complete an EPA quickly, if you get in touch with our dedicated team today. Claire Tuohy, solicitor at Homs Assist has many years of experience in helping families and loved ones get the reassurance they need. The first step is to simply reach out on 1800 202 207 or email [email protected]. Claire will help you protect your future, so you can get on with enjoying the present.
