What is an Enduring Power of Attorney and do I need one?

Wills, Probate and Estate Planning

18 January 2017 by Clodagh O'Hagan, Solicitor, and Helen Sweeney, Solicitor
What is an Enduring Power of Attorney and do I need one?

An Enduring Power of Attorney (EPA) is a document that allows you to plan for the management of your future in the event that you become mentally incapacitated e.g. by way of stroke, dementia, Alzheimer’s etc. An EPA enables you to choose a person that you trust to manage your personal and financial affairs.

Advantages of creating an EPA:

  1. You can appoint one or two members of your family or close trustworthy persons to step into your shoes to look after your property and financial affairs and make certain personal care decisions on your behalf.
  2. The EPA document sets out detailed information as to your wishes and specific requirements.
  3. It is a less expensive and an efficient manner letting you decide who will control your assets and personal affairs if you are not able.
  4. Unlike a general power of attorney, an enduring power of attorney will only come into effect in the event that your doctor certifies you as being mentally incapable of manging your own affairs. The EPA may never come into force should you remain in control of your affairs, it is a preventative measure only and there are a number of safeguards to protect you.

I’m still young – I don’t need to make an EPA yet?

There may be less obvious need to make an enduring power of attorney when compared with someone who is of advancing years and showing some signs of memory loss. However you can never tell when an accident might occur or an unexpected illness and at that stage it may be too late.

According to the Alzheimer Society of Ireland1:

  • The expected number of people to have Alzheimer’s by 2036 is to be in excess of 104,000 unless there is a medical breakthrough.
  • Currently 4,000 people in Ireland under the age of 65 have early onset Alzheimer’s.

Creating an EPA:

  • An EPA is created by entering into a written deed of appointment pursuant to the Powers of Attorney Act 1996.
  • In creating an EPA you may choose one attorney or more than one to act on your behalf.
  • You may also appoint an attorney or attorneys to act in the event that the original attorney is unable or unwilling to act.
  • Your GP must confirm that you are capable of entering into an EPA and we as your solicitors must also be satisfied that you understand the document you are signing.
  • You must give notice of the execution of the enduring power of attorney as soon as practicable to at least two persons called ‘notice parties’ who keep the attorney(s) in check.
  • No action is undertaken without notice to you. The notice parties are notified when the EPA is signed and when the attorney intends to register it.
  • The Act requires notices to be served at every step of the process to ensure that you and your notice parties are informed of the progress of the EPA and its registration.

An Enduring Power of Attorney creates peace of mind. It allows you to maintain control of your affairs until such time as you may become unable to do so yourself through mental incapacity.

What happens if I do not have an EPA:

In the event that you become incapacitated through mental illness and you do not have an EPA, an application will need to be made by your family to make you a Ward of Court. The Wards of Court process is a court based process by application through the High Court Wards of Court office. It can take between 8 months to one year to have a ward of court application made.

Your family will have no access to your assets for this period as no bank will allow anybody to deal with your bank accounts except you. Your assets will be frozen until you are made a Ward of Court and then the Accountants Office in the High Court will hold your money on your behalf. The Ward of Court office will have power over your assets as to how your money should be spent and your needs attended to. They will get the advices of your family however you will have no control. It is an extremely lengthy and expensive process.

If you wish to discuss making an EPA please contact us and we would be delighted to advise you and discuss further.

Copyright © Helen Sweeney and Clodagh O’Hagan, McKeever Solicitors, 18th January 2017.

This article is a general review of the law on the subject and is not intended to be a complete statement of the law. Specific legal advice must be sought on a case by case basis. For further information, please contact Helen Sweeney or Clodagh O’Hagan.

Key Contacts

Clodagh O'Hagan
Solicitor

IFSC, Dublin
Clodagh maintains a broad private client practice and specialises in the areas of property and probate law.

T: +353 (0) 1 670 2990

F: +353 (0) 1 670 2990

E: cohagan@mckr.ie

Helen Sweeney
Solicitor

IFSC, Dublin
Helen has a wide range of experience in the sale, purchase, acquisition and disposal of commercial and residential property.

T: +353 (0) 1 670 2990

F: +353 (0) 1 670 2988

E: hsweeney@mckr.ie