Enduring Powers of Attorney FAQ
Joyce & Co Solicitors answer the most frequently asked questions in relation to Enduring Powers of Attorney.
What is an enduring power of attorney?
An Enduring Powers of Attorney is a document by which you give a third party permission to handle your affairs which is executed when a person is in good health in preparation for the future. This does not come into effect until such a time the person has lost the mental capacity to make decisions. At that stage, the appointed solicitor/attorney will register the EPA with the Wards of Court Office.
When is the right time to make an Enduring Powers of Attorney?
There is no specific time to execute an EPA however it is absolutely essential that there is no question as to mental capacity when it is made. Its validity can be challenged by the family if they feel that the person did not have the necessary capacity at that time. These challenges are handled directly in the High Court where the original EPA is set aside and the donor made a ward of court.
What happens if I do not have an EPA in place?
If you do not have an EPA in place and you no longer have the mental capacity to manage your own affairs, your assets, property or money may be frozen which will make it impossible for your family to access them, unless these are jointly owned by the person looking to access them like a spouse using a joint account. In this case your family may need to apply to make you a Ward of Court which will give the courts the power to make decisions on your behalf. The judge will form a committee usually a family member(s) to attend to your affairs; the problem with this is that the person chosen may not have been your preferred choice for this role.
Also, the cost of making a person a Ward of Court is substantially greater than executing and registering an EPA.
Who can make an EPA?
Any person over the age of 18 years can make an EPA as long as they are of full mental capacity. If you are bankrupt you may only have an EPA created to decide upon personal care decisions.
What measures of safeguarding are in place to prevent abuse?
Due to an enduring power of attorney involving the transfer of considerable powers from the donor to the attorney there are a number of legal safeguards to protect the person from abuses:
- The procedure for executing an EPA requires the involvement of a solicitor and doctor.
- The EPA can only come into effect when the original document is registered in the office of the High Court.
- The attorneys cannot act until the EPA is registered.
- A second medical cert is required at registration confirming that the donor no longer has the mental capacity to manage his/her own affairs
- At least 2 notice parties are assigned and they have an object to the registration of the EPA should they feel that the donor has sufficient mental capacity to make decisions on their own.
- Notice parties are given 5 weeks to submit objections.