Wills, Probate and Trusts: A practical guide to enduring powers of attorney

HOMS Assist are members of Solicitors for the Elderly Ireland, which is a focus group within the legal profession concerned with improving the availability and delivery of specialist legal advice tailored to older and vulnerable people, their families and carers. Our approach is sympathetic, attentive and patient.

An enduring power of attorney

An enduring power of attorney is a written legal document that allows a person (the donor) to choose someone to act on their behalf in the future in the event that they become mentally incapacitated. An enduring power of attorney only operates when the person is incapable of making their own decisions and has been registered. The document will lie dormant until that point in the future. Up until then they are free to make all their own decisions.

Frequently Asked Questions

Why consider an enduring power of attorney?

Life expectancy is increasing, but so too is the prevalence of dementia and alzheimer’s. These illnesses can often be chronic, progressive and traumatic for families. There are currently 41,700 people suffering from Dementia and this is predicted to rise to 61,000 by 2021 and 104,000 by 2036. The prevalence is 1% between the ages of 60-64 but increases to over 50% in people aged 85 and over.

An enduring power of attorney will ease the burden that families may experience if a loved one develops dementia or alzheimer’s. An enduring power of attorney will ensure your assets are safe, secure and that decisions are made on your behalf by a person chosen by you.

Why are enduring power of attorneys important?

If a person suffers mental incapacity for any reason, whether through illness, accident or old age related disability, assets such as property and bank accounts may be frozen, and cannot be used to pay bills. The only available option in Ireland is Wardship if they have not created an enduring power of attorney. Their property and money is brought under the control and protection of the court, which appoints someone to look after their affairs. This can often be a more expensive and formal process. That is why we recommend putting an enduring power of attorney in place. It allows you to choose who you want to manage and look after your affairs.

What is involved?

There are a number of people involved in the process:

  • A Solicitor - who must be satisfied that you understand the nature of the enduring power of attorney and are acting voluntarily.
  • A Doctor - who states that you have sufficient mental capacity and understanding of the implications of creating the enduring power of attorney.
  • The Notice Parties - You must inform a minimum of two people (who are called Notice Parties), that you have signed an enduring power of attorney and these must be your closest relatives (but cannot be those appointed as Attorneys).
  • The Attorney - You may appoint one or more people to act as your Attorney(s). If only one is appointed, we recommend appointing a substitute also.

Does the attorney have to be a relative?

No. You are entitled to appoint anyone you wish as your Attorney, however as you are passing control of your affairs to someone else, you should emphatically trust those appointed to act in your best interests and follow your wishes.

Do the notice parties have further involvement in the process?

Yes. In addition to being informed that the Enduring Power has been created, they must also be informed at least 5 weeks before it is registered, so that they have an opportunity to object to its registration. Objections will generally involve a dispute on capacity or the appropriateness of the Attorney.

Does the enduring power of attorney cover just your financial affairs or personal care decisions also?

This depends on the enduring power. It is possible to create separate enduring powers to deal with both financial affairs and personal care decisions separately, or combine both into one. This is usually a personal choice.

Can an enduring power be revoked?

Yes. You can revoke an Enduring Power previously signed at any time, before it has come into force. Once registered, it may only be cancelled by the High Court.

What happens if the donor dies?

The Attorney’s right to manage your affairs ceases immediately upon death. If you have made a will, then your executor assumes control. If no will has been made, then the closest relatives can apply to administer your estate.

What personal care decisions can be made and do they involve health care decisions?

Personal care decisions include decisions such as, where you should live, with whom you should live, decisions on access to social services, housing and other benefits but not health care decisions.

Can a donor limit the scope of authority?

Yes. You can decide on the scope of authority given to the Attorney. For example if a relative is living with you, you could stipulate that the property is not sold, while the relative still requires housing. Restrictions ought to be carefully considered, as they may render the Enduring Power unworkable and inflexible.

How is an enduring power brought into effect?

Your doctor must issue a certificate to confirm that you are, or are becoming incapable of managing your affairs. Certain documents must be served on you, the Notice Parties and the Wards of Court office and 5 weeks must pass, before registration can be made. During this period, objections can be lodged. Once the Enduring Power is registered, a certificate of registration will issue and the Attorney may then lawfully act on your behalf.

Once the enduring power is registered, do your assets transfer to the attorney?

No. Registration of the Enduring Power simply authorises the Attorney to act as your agent doing what you might have done yourself. The Attorney’s decisions must mirror decisions that you would ordinarily have made and must be in your best interests. All assets remain in your name but the Attorney has power to deal with these assets.

Can the attorney use your funds to benefit others?

Yes - provided there is no contrary expressed intention or restriction set out in the Enduring Power. The Attorney can use your property to benefit others such as your spouse or children, who may be dependents.

Can others be involved in the decision making?

No. Only the Attorney has power to make decisions. However if you wish, you can stipulate that others are consulted for their views, but such representations are not binding.

Is an attorney obliged to file accounts?

The Attorney should keep separate and full accounts and records for inspection. Under no circumstances should the Attorney’s personal accounts be used for this purpose.

Are all powers of attorney the same?

No. The General Power is relevant, where there is a physical infirmity and the Enduring Power solely confined to deal with mental incapacity. It may be wise to have both, if the circumstances warrant.