21 06 2018 Insights Tax

Enduring Powers of Attorney – What You Need to Know About Them

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By Mark Ludlow
21 June, 2018

What is an Enduring Powers of Attorney?

An Enduring Power of Attorney (“EPA”) is a legal document. It allows you to choose who will make certain decisions for you in the event that you become unable to make decisions for yourself. If you do not have an EPA in place and you lose mental capacity wardship may be the only alternative.

The powers under an EPA only come into effect if you lose mental capacity. This could occur gradually over time if you develop a neurological disease such as Alzheimer’s, but could also occur suddenly if you suffer a head injury in an accident.

What type of powers would the attorney have and how do they exercise them?

Within certain limits, you decide the scope of the powers you grant to your attorney (or attorneys) and the circumstances in which they can exercise them is for you to decide.

  • You could give your attorneys power to make "personal care decisions" or “financial decisions” or both.
  • You could appoint one attorney (or a number of attorneys) to make financial decisions for you, and a different attorney(s) to make personal care decisions for you.
  • If you are appointing multiple attorneys then you can decide whether they must all agree on each decision (act jointly), or whether they can act independently of each other (or act jointly and severally). There are advantages and disadvantages to both.

Does the attorney have to be a lawyer (solicitor / barrister)?

No, while we are familiar with American television programs which describe lawyers as ‘attorneys’, in the context of an EPA, an attorney simply refers to the person granted the powers to decide. You can appoint a trusted family member or friend and in practice this is what tends to happen.

What are personal care decisions?

A personal care decision is a decision concerning one or more of the following:

  • Where and with whom you should live
  • Whom you should see and not see
  • What training and rehabilitation you should get
  • Your diet and dress
  • Inspection of your personal papers
  • Housing, social welfare and other benefits

I have a will, do I need an EPA?

A will and an EPA are different. A will only takes effect on your death. An EPA can only operate during your life, and only in the event that you lose mental capacity. Whether you wish to put an EPA in place is a personal decision.

Are there safeguards and conditions?

Yes, there are a number of conditions which must be complied with before an EPA can be put in place, and again before it can become operational. Your solicitor can advise you of these safeguards and requirements in further detail, including who you must notify that you have put an EPA in place.

A major piece of legislation, the Assisted Decision-Making (Capacity) Act 2015, will radically overhaul this area when the Decision Support Service is fully up and running in the future.

An example of how an EPA might work?

Jim is 52, widowed with two adult children Sean and Linda. Jim decided to put in place an Enduring Power of Attorney (EPA) so that he can choose who will manage his affairs in the event that he becomes mentally incapacitated during his life. This involved a visit to his doctor and his solicitor. His doctor certified that he had capacity to make the EPA, and his solicitor advised him on the legal effect of an EPA and prepared the paperwork. His selected attorneys consented to act. Jim notified his brothers Tom and Frank that he was putting the EPA in place, as there is a requirement to send notices to two relatives (excluding the attorneys). If Jim’s wife was still alive he would have had to notify her.

Jim’s EPA grants his children, Sean and Linda, the power to make personal care decisions for him in the event that he becomes incapacitated. Jim provides that these powers can be exercised on a joint and several basis meaning that Jim’s daughter Linda could make decisions as to his care without consulting with the Sean (and vice-versa). This means that decisions could be made easily and quickly.

Jim has a number of rental properties, other investments, and shares in his business. The EPA also grants the power to make financial decisions to Sean and Linda. If Jim lost mental capacity and he did not have an EPA in place he would have to be made a ward of court to enable these financial decisions to be made on his behalf.

As Jim is fully capable of making his own decisions, the EPA is kept in his solicitor’s office ‘just in case’. It has no effect while he has capacity to make his own decisions.

Several years later when Jim is 60 he is involved in a road traffic accident. Unfortunately he suffers a head injury which renders him incapable of making decisions for himself. His solicitor ‘registers’ the EPA in order to activate its powers. As part the application process a second medical certificate is required to confirm that Jim does not have mental capacity to make his own decisions, and as an additional safeguard his brothers Jim and Frank are notified and given 5 weeks to object to the EPA being activiated.

Jim’s EPA is registered and its powers become active.

As Jim’s EPA granted joint and several powers to Sean and Linda to make personal care decisions for him each is independently able to make the day-to-day care decisions necessary to keep Jim comfortable.

They can also collect rents from the tenants of his rental properties and grant new leases. When it is discovered that one of the properties is affected by subsidence they decide to sell some of his investments to fund repairs.

Jim passes away at 68. The powers granted by the EPA cease on his death. Jim’s will then comes into effect and his estate passes in accordance with its terms.

Because Jim had created an EPA granting powers to make financial decisions, his attorneys were able to manage his assets during the time he was incapacitated preserving the value of his estate for his beneficiaries. They were also able to make personal care decisions to keep him comfortable.

If Jim had not put an EPA in place then his family could have applied to the High Court to make him a ward of court. However that process can be expensive, and Jim would have had no say in the people selected to manage his affairs.

For more information on the content of this Insight please contact:
Mark Ludlow, Solicitor, RDJ's Private Client Services team, mark.ludlow@rdj.ie, +353 21 4802730

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