Enduring power of attorney explained

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Do you or does someone close to you have Alzheimer’s disease, senility, dementia or memory loss? Then you may need to consider ‘enduring power of attorney’. Solicitor Aisling O’Leary explains

 

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) is a legal document that allows you (‘the Donor’) to appoint one or more trustworthy persons of your choice (‘the Attorney’) to look after your personal and financial affairs if, at a future time in your life, you are deprived of the mental capacity to do that for yourself. The powers you give to your attorney can be general or specific or subject to conditions or restrictions.

How do you create an EPA?

The EPA instrument contains a number of statements required by law that have to be completed.

You must notify your attorney, who must sign a statement that he/she understands the duties and obligations of an attorney and the requirements of registration.

You must notify at least two persons (neither of whom can be the attorney) that you have executed an EPA.

Your solicitor must ensure that you understand the effect of creating the EPA, that you are not under any undue pressure from any third party, that the instructions are given freely by you and sign a statement to that effect.

Your G.P. must also sign a statement verifying that you have the mental capacity to understand the effect of creating the power of attorney.

When and how does and EPA come in to effect?

The EPA can only come into force when it has been registered with the Registrar of the Wards of Court. The attorney should only apply for registration of the EPA if you lose or are losing mental capacity.

Prior to making such an application, a medical certificate should be obtained to the effect the donor is becoming incapable by reason of a mental condition of managing his/her own property and affairs.

The attorney must serve a Notice of Intention to apply for registration on the donor and the notice parties and the Registrar of the Wards of Court.

Can an objection be made to the registration of an EPA?

The donor and the notice parties may, within five weeks of the date of notice of intention to apply for registration, lodge a notice of objection in the Office of Wards of Court.  Where this is done the Powers of Attorney Act stipulates that the court shall neither register the EPA nor refuse the application, until it has made such enquiries as it thinks appropriate in the circumstances of the case.  There are a number of grounds for objection including that the donor is not or is not becoming mentally incapable.

Post registration, does the attorney report to the Wards of Court Office?

The attorney is not required to keep the Wards of Court Office informed of the actions he/she takes on behalf of the donor but is obliged to keep adequate accounts of the donor’s property and affairs and to produce the accounting records to the Wards of Court Office if required.

The High Court has a supervisory role in respect of the EPA.  Once it has been registered, an application may be made to the court by the donor, the Attorney, or any other interested party for an order for directions with respect to the management or disposal of the donor’s property or affairs by the attorney.

The attorney should notify the Registrar of Wards of Court if the donor dies or recovers.

Can an EPA be revoked?

You can revoke an EPA at any time before an application is made to register it.  Once it is registered, an application would have to be made to the High Court to have it revoked.

Enquiries/Queries

Aisling O’Leary is a partner with Ernest J Cantillon Solicitors. If you have any queries, contact Ernest J Cantillon Solicitors, 39 South Mall, Cork on 021 4275673. Email: info@cantillons.com

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