When reviewing the options available to you under your Enduring Power of Attorney, one of the most important things to consider is the appointment of your Attorney. This is a completely personal choice but, before making the choice, you should examine the decision carefully and discuss the subject with your proposed Attorney.
In short, your Attorney (or Attorneys) should be trustworthy. Once the Enduring Power of Attorney is registered, the Attorney will have full control of your assets and finances with little or no supervision. They will ave the power to sell your assets, make gifts and draw down funds without consulting with any other person (unless you appoint persons to do so).
You should also consider whether the Attorney has the necessary skills to manage your affairs. Large and complex assets would require a skill set that may not be found in your close family and careful consideration should be given to whether the Attorney nominated under the Enduring Power of Attorney can properly look after you estate.
In most cases, the appointment of two Attorneys will negate some of these issues and can assist when looking at the skill set of the potential Attorneys. You can further protect yourself by opting for the Attorneys to act jointly – in that they both must agree and act together in order to make decisions.
“Where two or more persons are appointed (or are deemed to have been appointed) to act jointly, then, in the case of the death, incapacity, or disqualification of any one or more of them the remaining attorney or attorneys may continue to act whether solely or jointly as the case may be, unless the instrument creating the power expressly provides to the contrary”
This means that if you have appointed two Attorneys to act jointly (in order to protect yourself from possible abuse), then all your planning could be undone if one of your Attorneys dies, is unable to act or is precluded from becoming an Attorney. Prior to executing the Enduring Power of Attorney, you should give careful consideration as to whether you wish to appoint alternate Attorneys to step in to their place.
An important note is that any matters related to joint appointment, alternateAttorney or third parties must be done at the time of execution of the Enduring Power of Attorney.
Certain events or circumstances can give rise to the disqualification of a person to act as an Attorney, they are:
- where the Attorney is a spouse and there has been a subsequent annulment or dissolution of marriage (Section 5(7) of the Powers of Attorney Act, 1996 as amended by section 50(a) of the Family Law (Divorce) Act, 1996),
- where the Attorney is under 18 (a minor),
- where the Attorney has been adjudicated Bankrupt,
- where the Attorney has been convicted of an offence involving fraud or dishonesty (Section 5(4) of Powers of Attorney Act, 1996),
- where the Attorney has been convicted of an offence against you or your property (Section 5(4) of Powers of Attorney Act, 1996),
- where the Attorney has been disqualified under Section 150 under the Companies Act, 1990 (Section 5(4) of Powers of Attorney Act, 1996),
- where the Attorney is connected with the nursing home in which you reside (Section 5(4) of the Powers of Attorney Act, 1996).
You should also be aware that a potential conflict of interest could arise if the Attorney is also a beneficiary of your estate under your will.
What powers and obligations does an Attorney have under a registered Power of Attorney?
- Prior to registration, the Attorney can may take certain actions/decisions pending registration once an application for registration has been made. (Section 7(2) of the Powers of Attorney Act, 1996),
- They have a requirement to act in your”best interests” when making personal care decisions under the Enduring Power of Attorney. This includes (1) having regard to your past and present wishes and feelings, (2) facilitating you in being involved in any decisions regarding your treatment and welfare, (3) consulting with persons caring for you or interested in your welfare,
- The concept of ‘best interest’ also involves considering whether there is an alternative method of obtaining the same result which would be less restrictive of your freedom of action. (Section 6(7) of Powers of Attorney Act, 1996),
- They must keep accounts of your property & financial affairs and to produce these accounting records to the Court if required, as provided in the Enduring Powers of Attorney Regulations, 1996,
- They must keep your property separate from their own property. For example, the proceeds of any accounts held by you should not be transferred to (or mixed with) monies owned by the Attorney,
- They must not profit from the position as your Attorney,
- They should consult with family members and keep the family generally informed, even if there isn’t a requirement to do so under the Enduring Power of Attorney.
You should note that this is not an exhaustive list and other considerations can arise, depending on the circumstances of each individual Enduring Power of Attorney.
At O’Kelly Solicitors, we have the expertise to advise you on all of the issues that can arise in relation your Enduring Power of Attorney. We can guide you through the process, with the minimum stress, and with a clear and transparent cost structure.
For more on the fixed price cost of your Enduring Power of Attorney, please click here.
Also, see the other sections of our website for further information on Enduring Power of Attorney in Ireland:
- Practice Area/Enduring Power of Attorney Ireland.
- Blog/What is an Enduring Power of Attorney?
- Blog/What is the cost of an Enduring Power of Attorney in Ireland?
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.