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Enduring Power of Attorney – what is the scope of an Attorneys powers?

Enduring Power of Attorney IrelandWhat is the scope of an Attorneys powers?

When you are considering your Enduring Power of Attorney in Ireland, and after you have decided on your Attorney (see our blog post – Enduring Power of Attorney – who should be your Attorney), you must also consider the scope of the power you are going to give your Attorney. Basically, there are three elements to the power you can grant to your Attorney.

The first is in relation to your business & financial affairs, the second relates to personal care decisions and the third relates to gifts and remuneration.

(1) Business and Financial Affairs

Under your Enduring Power of Attorney, you can grant your Attorney either a general or limited power in respect of your financial affairs.

A general power grants your Attorney free reign to deal with your assets in which ever way they choose (subject to same being in your “best interests” – see our blog post here on the topic). You should also remember that, once registered, your Attorney will have little or no supervision by third parties or the Courts. The scope of this power ties in closely with the necessity for your Attorney to be trustworthy.

As an alternative, you can grant a limited power to your Attorney which gives you the power to control:

  1. what property can and cannot be sold,
  2. what monies can and cannot be used to meet day to day and care costs,
  3. what properties must be retained (for example, the family home or principle private residence)

If you decide to opt for a limited power to be granted to your Attorney, there are certain consequences for limiting the power granted. If, for example, an issue arises in relation to some aspect of your financial affairs which are not covered in your enduring power of attorney, then the only option that would be available to resolve the issue would be to take you into Wardship under the Ward of Court process (Section 5(9) of the Powers of Attorney Act, 1996). For more information in relation to the Ward of Court process, please see here.

(2) Personal Care Decisions.

Under the document creating your Enduring Power of Attorney, there are a number of personal care decisions inserted within the document which can be altered or deleted prior to execution. They are:

  1. where you should live,
  2. with whom you should live,
  3. whom you should see and not see,
  4. what training or rehabilitation you should get,
  5. your diet and dress,
  6. inspection of your personal papers,
  7. housing, social welfare and other benefits for you.

as with the Business & Financial Affairs powers, once these powers are granted, your Attorney will have complete power in relation to these aspects of your personal care. This can cause difficulty if the Attorneys decision runs counter to the wishes of your family (or extended family).

In such circumstances, an option is to nominate another person to be consulted in relation to such decisions. This may be of particular assistance if you have nominated a professional (or a friend) to act as your Attorney as the third party can either be a member of the family or can act as a “bridge’ between the decisions of the Attorney and the wishes of the family.

You should note, however, that by granting an enduring power of attorney, you will not have automatically granted consents to medical procedures to your Attorney. This is a situation where there is a gap in the law as between the powers granted under an enduring power of attorney and the legality of decisions made by an attorney in relation to medical consents. Under the current state of law, the only option available to medical practitioners (GPs, Doctors) where consent cannot be given by a person (who has a registered enduring power of attorney), such decision can only be made where (1) treatment is necessary to preserve the life or health of the patient, (2) treatment that would be in their best interest or (3) under order of the Court subsequent to the person being made a Ward of Court.

(3) Gifts & Remuneration

Under your enduring power of attorney, you can direct that your Attorney can make gifts from your assets once it is registered in the High Court. This is a very difficult area to fully control and is open to abuse if not properly considered.

The ability to dispose of your assets is provided for under Section 6(4) of the Power of Attorney Act, 1996 (see here) and Section 6(5) of the Powers of Attorney Act, 1996 (see here).

Section 6(5) allows an attorney to dispose of your property by way of gift under certain circumstances and to certain people. These gifts can be:

(1) gifts of a seasonal nature (Christmas, Easter and other holidays) of people related to or connected to you,

(2) gifts for the birth or marriage of people related to or connected to you,

(3) gifts on the anniversary of a birth or marriage of people related to or connected to you,

(4) gifts to any charity to which you made a gift (or you might be expected to make)

You should note that the value of the gift must be reasonable in size when compared to your assets and having regard to all the circumstances.

If you decide that you wish to pay your Attorney, or if you have nominated a professional to be your Attorney,  you will have to specify how such payment will be made. it is important to be aware that there is no necessity to pay an Attorney (who is not a professional) and you should carefully consider whether you wish to pay them at all.

At O’Kelly Solicitors, we have the expertise in all aspects 0f the Enduring Power of Attorney process, from advising you on the potential pitfalls, the creation of an Enduring Power of Attorney and the registration of your Enduring Power of Attorney.

We provide clear pricing, at a fixed fee, for the creation of your Enduring Power of Attorney. Further details can be seen here.

Also, see the other sections of our website for further information on Enduring Power of Attorney in Ireland:

1. Practice Area/Enduring Power of Attorney Ireland.

2. Blog/What is an Enduring Power of Attorney?

3. Blog/What is the cost of an Enduring Power of Attorney in Ireland?

4. Blog/ Enduring Power of Attorney – who should be your Attorney?

If you have any questions in relation to the creation of an Enduring Power of Attorney, the issues that can arise prior to the execution of an Enduring Power of Attorney and the cost of an Enduring Power of Attorney in Ireland, please do not hesitate to call us. Our contact details can be accessed here.

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