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The rise in demand for an Enduring Power of Attorney

By: Fionnuala Cullinane | Posted on: 21 May 2020

We are seeing an increasing interest in, and demand for, Enduring Powers of Attorney.

An Enduring Power of Attorney (EPA) is a legal document which enables you to choose a person (called the attorney) to manage your property and affairs in the event of you becoming mentally incapable of doing so.

Until such time as Part 7 of the Assisted Decision Making (Capacity) Act 2015 is in force the relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996.

There are many ways a person may lose mental capacity for example, stroke or dementia and this can often leave a family with no means of dealing with the affairs of a loved one. The EPA does not take effect until such time as you lose mental capacity and it is registered with the High Court.

There are specific requirements set down by the legislation for a valid EPA. These can be briefly addressed under the following headings:

  • Attorneys

  • Powers

  • Notice Parties

  • Doctor’s Statement

  • Solicitor’s Statement

Attorneys

You can appoint anyone you wish to be your attorney although usually a close relative is chosen.

You can choose one attorney or more than one.  If you choose more than one you must decide whether they are able to act

  • Jointly (they must act together and cannot act separately)

      Or

  • Jointly and severally (that is they can all act together but they can act separately if they wish).

It is possible to appoint a substitute attorney, that is, an attorney to act in the event that the original attorney or attorneys are unable or unwilling to act.

Powers

You can give your attorneys general power in relation to all your property and affairs. If you do so, they will be able to deal with your money or property and will, for example, be able to sell your house.

You can permit the attorney to take personal care decisions on your behalf, for example, deciding where you should live.

Notice Parties

You must give notice of the execution of the EPA to at least two people.  These people cannot be the same people that you nominate as attorneys. If you live with your spouse one of these must be your spouse.

Doctor’s Statement

Your doctor must verify that in his or her opinion you have the mental capacity at the time that the document is executed to understand the effect of creating the power.

Solicitor’s Statement

After meeting with you your Solicitor must be able to state that you understand the effect of creating the power and that you are not acting under undue influence.

The creation of an EPA is something which should be seriously considered by each and every one of us to ensure that our interests are fully protected.  If you would like further information, please contact Emma Comyn or Fionnuala Cullinane on 021 4626900 for further information.

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