Enduring Power of Attorney in Ireland
In Ireland, there are two types of Power of Attorney in Ireland which people can encounter. The first is a simple “Power of Attorney” and the second is an “Enduring Power of Attorney” (or an “EPA”).
1. Power of Attorney vs Enduring Power of Attorney
In some transactions (such as property transactions), you may be asked to execute a “Power of Attorney”. This is a legal document in which you give another person the power to act on your behalf (your “Attorney”) in respect of all or certain elements of a particular transaction. Usually, these permissions are limited in scope or time – such as the power to execute a document on your behalf in respect of a certain transaction only or, alternatively, to execute documents for you for a defined period. These Powers of Attorney either expire or come to an end if you become mentally incapacitated.
An Enduring Power of Attorney, on the other hand, runs along the same lines but it is executed while you are mentally competent and only becomes effective once you are mentally incapable. The document must also be registered in the High Court for it to take effect.
2. What is an Enduring Power of Attorney?
In its simplest terms, an Enduring Power of Attorney is a document in which you appoint one or two persons to look after your affairs in the event that you are incapable of looking after your own affairs at some point in the future. Your capacity/capability in the future will be decided by your Doctor or Consultant.
The important thing to note about an an Enduring Power of Attorney is that (1) it can only be put in place while you have the mental capacity to do so and (2) it does not become effective until after you become incapable of looking after your affairs.
3. Why should I set up an Enduring Power of Attorney?
While an Enduring Power of Attorney may never be acted upon as you may never become so incapacitated that you are unable to manage your affairs, it is a sensible precaution to put an Enduring Power of Attorney in place as it enables you to:
- appoint a person or persons of your own choosing to act on your behalf,
- it can reduce the stress of your family at an already difficult time,
- it can prevent family disputes in relation to assets and care decisions,
- it is a far cheaper and straightforward than the alternative to an Enduring Power of Attorney (a Ward of Court Application).
The common misconception is that Enduring Powers of Attorney only apply for elderly patients but this is not the case. An Enduring Power of Attorney is also suitable for situations involving acquired brain injury, psychosis or other physical and/or mental dysfunction which may have a permanent or temporary effect on a persons ability to manage their own affairs.
We strongly recommend to all our clients to execute an Enduring Power of Attorney in conjunction with their Wills. Details of matters to consider prior to drafting your Will can be seen here in our blog post on the matter.
4. What does an Enduring Power of Attorney cover?
The Enduring Power of Attorney can allow your Attorney to look after either (1) your financial and property affairs or (2) your health and personal affairs or (3) all of your affairs (financial, property, health & personal affairs).
The type of decisions they you may let them make on your behalf can relate to what to do with your house or investment properties, where you will live, who you will live with, your diet and dress and other very personal decisions which directly affect you and your future care.
In short, you may give your Attorney as much or a little power as you choose. The decision is entirely yours.
5. How do you set up an Enduring Power of Attorney?
The initial step in setting up an Enduring Power of Attorney is contact the office to obtain our information pack (our contact details are here). This will guide you through the information needed to draft the forms attached to creating your Enduring Power of Attorney.
You will need to consider the following prior to completing the information pack:
a. who should your Attorney/s be.
Your Attorney can be anyone that you wish – a family member, a friend, your solicitor or accountant – and you can nominate as many Attorneys as you wish. We would always recommend nominating more than one Attorney as should one die (or otherwise become unable to act), then your remaining Attorney can continue to act.
You should also consider nominating an alternate Attorney in the event that one or more of the appointed Attorneys cannot or will not act.
The main issue with any Attorney is that you must have confidence and trust in them as they will take over the entirety of your assets and your affairs. You should also consider whether the person you nominate has the capacity to manage your affairs in a business like manner as well as the necessary skills to best look after your affairs.
For example, if you hold a large amount of investments (stocks, shares, securities) as well as invested cash assets and properties, you should consider whether your proposed Attorney has the skill set to manage these assets.
Remember, you should also discuss their nomination with them beforehand as they must be willing to act.
b. who your Notice Parties will be.
Your Notice Parties are two persons other than the attorney/s that you appoint who will be served with formal notice of the fact that you have created an Enduring Power of Attorney. They will also be notified again in due course if the EPA is to be acted upon and to be registered.
You Notice party must be (a) your spouse or civil partner (if living with you and is not your Attorney) or (b) your child. If neither is applicable in your case, then your Notice Parties must be relatives – a parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece.
c. will you nominate a third party in your Enduring Power of Attorney?
You can choose to nominate a third party within your Enduring Power of Attorney. This third party will be consulted in respect of decisions made by your Attorneys and will be allowed their input in the decision making process. There is no need to have a third party but you can elect to have one is you so wish
Once you have consider the above issues, you will need to complete the information pack and return it to us.
Once we are in receipt of the completed information pack, we will draft the necessary Enduring Power of Attorney forms and arrange an appointment for you and your nominated Attorney/s to meet with us.
At our meeting, we will run through the paperwork and all parties will execute their respective Enduring Power of Attorney forms, dispatch the necessary notices to (1) your notice parties and (2) your GP and collate, arrange and store the Enduring Power of Attorney should it be needed in the future.
6. how much does an Enduring Power of Attorney cost?
At O’Kelly Solicitors, we aim to be completely transparent on price so we provided a fixed fee service for the drafting & executing of your Enduring Power of Attorney of €350 (plus VAT and outlays). There will also be items of outlay incurred on your behalf, such as registered post fees (currently €10.50) and Commissioner for Oaths fees (currently €12.00) and the fee for your Doctors confirmation that you are capable to execute an Enduring Power of Attorney (this can range from €0 – €100, depending on your GP).
This gives a total cost (excluding GP costs) of €453.00.
If it is a couple, we offer a reduction in the overall fee to €500.00 plus VAT and outlays for the two Enduring Powers of Attorney. The outlays will double (to reflect there are two EPA’s) to €21.00 (for registered post) and €24.00 (Commissioner for Oaths).
This gives a total cost (excluding GP costs) of €660.00.
Please contact us here for any further questions you may have or to request our EPA information pack.
If you want to know more on this topic, please see our blog posts on the subject
2. Blog/Our Latest Fixed Fee Solutions