In Ireland, there are two types of Power of Attorney which people can encounter. The first is a simple “Power of Attorney” and the second is an “Enduring Power of Attorney” (or “EPA”).
In some transactions (such as property transactions), you may be asked to execute a “Power of Attorney”. This is a legal document thereby you give another person the power to act on your behalf (your “Attorney”). 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.
Essentially, by executing an Enduring Power of Attorney, you will choose and appoint one or two persons to look after your affairs in the event that you are no longer capable of looking after your own interests 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 capacity to do so and (2) it does not become effective until after you become incapable of looking after your affairs.
The EPA may never be acted upon as you may never become so incapacitated that you are unable to manage your affairs. However, we believe it is a sensible precaution to put an Enduring Power of Attorney in place as it enables you to (1) appoint a person or persons of your own choosing to act on your behalf, (2) it can reduce the stress of your family at an already difficult time, (3) it can prevent family disputes in relation to assets and care decisions and (4) it is a far cheaper and straightforward process than the alternative (a Ward of Court Application).
We strongly recommend to 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.
The Enduring Power of Attorney can allow your Attorney/s to look after either (1) your financial and property affairs or (2) your health and personal affairs (or both, if you so wish).The type of decisions they you may let them make on your behalf can relate to where you live, who you live with, your diet and dress and other very personal decisions which directly affect you.
There are number of forms to be prepared to establish an Enduring Power of Attorney and the whole process is quite formal due to the nature of the authority you intend giving your nominated attorney. The formality of the procedure is there to safeguard you as it contains certain checks and balances to protect all donors. While it may be overly complicated, it is ultimately in your best interests.
As an aside, the only option available to persons who have become mentally incapacitated (through old age, illness or trauma) who do not have an Enduring Power of Attorney is to make an application through the High Court under the Wards of Court process. We will deal with Wards of Court applications in our next blog.
As always, 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) for a single person . There will also be items of outlay incurred on your behalf, such as registered post (€10.50) and Commissioner for Oaths (€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).
Please contact us here for any further questions you may have or to request our EPA information sheet.
If you want to know more on the topic, please see our practice area on Enduring Power of Attorney.