Enduring Power of Attorney – the Basics
We are receiving increasing numbers of enquiries from Clients as to the meaning, nature and scope of an Enduring Power of Attorney. In particular, relatives of persons who have been diagnosed with illnesses such as Alzheimer’s Disease or senility or who are concerned about diminishing memory in their loved ones as well as residents of Nursing Homes query the use and scope of Enduring Powers of Attorney.
An enduring power of attorney enables a person (called a “donor”) to choose another person (called an “attorney”) to manage that person’s property and affairs in the event of him or her becoming mentally incapable of doing so. More than one Attorney may be chosen. It is important to note that an Enduring Power of Attorney does not become effective until a number of conditions have been satisfied. Firstly, the donor must be mentally incapable of managing his or her own affairs. A person’s incapacity must be determined by a Medical Practitioner and subsequently the attorney must register the Enduring Power of Attorney with the High Court. The Enduring Power of Attorney does not been effective until it is registered in the High Court.
The powers that can be given by a donor to an Attorney may be wide such as powers to carry out all acts on behalf of the donor or restricted to certain acts such as those relating to the ongoing care of the donor. The donor must give notice of the execution of the enduring power as soon as practicable to at least two persons one of whom may be an attorney under the power. At least one must be the donor’s spouse, if living with the donor. If the donor is unmarried, widowed or separated, notification must be given to a child of the donor (if applicable) or otherwise to any relative (i.e. parent, sibling, grandchild, widow/er of child, nephew or niece) as well as to the Register of the Wards of Court.
Before applying for registration of this power, the attorney must give written notice of intention to do so to the donor and to the persons the donor notifies of the execution of the enduring power. The donor and these persons (if they are not then available, certain of the donor’s relatives) will be able to object if the donor or they disagree with registration. As stated, the enduring power will not come into force until it has been registered.
Some clients have expressed concern that they will lose the power to manage their own affairs as soon as they sign Enduring Powers of Attorney. That is not the case. As stated, an Enduring Power of Attorney cannot be registered to be effective until a Medical Practitioner certifies that a donor has lost mental capacity to manage his or her affairs. Even where a Medical Practitioner does so, the donor or his or her nominees may dispute the lack of capacity.
Generally, Enduring Powers of Attorney can be very useful and, in particular, lessen worries that both donors and their relatives may have as to dealing with a person’s affairs and care when that person is no longer mentally capable of managing themselves or their affairs.
Wills, Estate Planning and Administration of Estates Department,
Healy O’ Connor, Solicitors