Probate and Wills Enduring Power of Attorney & Wardship

Enduring Power of Attorney
(Living Will)

General Power or Personal Care Decisions

The first half of life consists of the capacity to enjoy without the the chance; the last half consists of the chance without the capacity.

Mark Twain

Enduring Power of Attorney & Wardship

An Enduring Power of Attorney (EPA) is a document to allow a person (the Donor) appoint another person (an Attorney) to look after his/her affairs and make decisions about their welfare, if in the future they become permanently mentally incapacitated. 

The EPA can be a General Power, entitling the Attorney to do almost everything that you yourself could do, or it may be limited to allow the Attorney to make personal care decisions on the Donor’s behalf.

Personal care decisions may include deciding where and with whom the Donor shall live and what Nursing Home he/she might reside in.

Anyone can be appointed as an Attorney including a husband/wife, a child, friend or Solicitor; you may appoint more than one person as Attorney acting either together or on their own.

There are a number of safeguards when signing an Enduring Power of Attorney including:

  1. A statement from a doctor confirming that the Donor has the mental capacity to sign the document.
  2. A statement from a Solicitor confirming that the Donor has the mental capacity to sign the document.
  3. Notice Parties – two blood relatives must be notified of the making of the Enduring Power of Attorney.

The EPA only comes into operation when it has been registered in the High Court. The Attorney appointed makes an application to the Wards of Court Office if the Donor is, or is likely to be, permanently mentally incapacitated and is unable to look after his or her affairs.

The Attorney must:

  • Inform the Donor in writing that he is registering the EPA
  • Write to the Notice Parties
  • Obtain medical confirmation of the permanent mental incapacity
  • Prepare a sworn statement including copies of all relevant documents
  • Lodge paperwork in Wards of Court Office

The Attorney must be carefully chosen as once the EPA is registered they are in full control of the Donors affairs.

The Court has an extensive supervisory role in respect of the EPA. The EPA can be cancelled by a Court if it is satisfied that :

  1. The Donor is mentally capable and likely to remain so
  2. The Attorney is unsuitable
  3. Fraud or undue pressure was used to induce the Donor to create the Enduring Power of Attorney

The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996.

The Assisted Decission-Making (Capacity) 2015 will change the definition of capacity. Previously capacity was assest on the status basis. Now it can be assest on the functional basis.

 

 

John Griffin

John Griffin

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