With life expectancy on the increase and the dementia rate expected to rise threefold by 2046 the chances are that you will need to consider taking out a power of attorney for either yourself or a family member sometime in the future. Setting up a Power of Attorney can give you peace of mind in the event of not been able to look after your own financial affairs.
A power of attorney is a legal document set up by a person (the donor) during his/her lifetime when he/she is in good mental health. It allows another specially appointed person (the attorney)to take actions on the donor’s behalf if the donor is either absent, abroad or incapacitated through illness.
There are two types of power of attorney
- General power of attorney – gives either a specific power i.e. sale of a house, or general powers i.e. authority to deal with all of the donors financial affairs, and ceases if/when the donor becomes incapacitated.
- Enduring power of attorney – comes into effect when the donor becomes unable to look after their own affairs and the document has been registered in the high court.
What is an enduring power of attorney?
An enduring power of attorney is like a “living Will” – a Will that comes into effect while the individual is still alive but no longer able to control their affairs.
A general power of attorney ceases if the donor loses mental capacity whereas an enduring power of attorney only comes into effect on the subsequent mental incapacity of the donor.
How can someone set up an enduring power of attorney?
The document must be put in place while the donor is still of sound mind, in a particular format and must include the following:
- A statement by a doctor verifying that the donor had the mental capacity to understand the effect of creating the power,
- A statement from the donor confirming that they understand the effect of creating the power,
- A statement from a solicitor verifying that the donor had the mental capacity to understand the effect of creating the power and that the donor is acting of their own free will.
The donor must notify at least two other people that they are effecting the enduring power of attorney.
Who can be appointed as the attorney?
The donor can appoint anyone they wish to be the attorney. They may also appoint more than one person as attorney. If more than one attorney is appointed then the donor should specify if they are to act
Jointly – i.e. together on all matters.
Jointly and severally – i.e. together or separately if they wish.
If the enduring power of attorney does not specify “jointly” or “jointly and severally”, attorneys are deemed to have been appointed jointly.
Who cannot be appointed as the attorney?
- People under the age of 18,
- People who have been declared bankrupt,
- People convicted of an offence involving fraud or dishonesty,
- People disqualified under the companies act,
- An individual or trust corporation who owns a nursing home in which the donor lives or an employee or agent of the owner, unless that person is also the donors spouse, child or sibling.
When does the enduring power of attorney come into effect?
The enduring power of attorney only comes into effect when it has been registered in the High Court – Office of the Wards of Court.
- To register the power, the attorney must make an application to the High Court once he / she believes that the donor is mentally incapacitated or is becoming mentally incapacitated.
- The attorney must have a medical certificate confirming that the donor is unable to look after their affairs.
- The attorney must notify the donor and the two nominated people on the power that they are registering the power with the court. It normally takes 5 weeks after the initial documentation is lodged in the Office of the Wards of Court for the enduring power of attorney to be registered.
What authority / power does the attorney have?
The donor is required, when creating the enduring power of attorney, to specify what powers the attorney is to have. These powers may be very general or they may be subject to conditions or restrictions. The donor may also include an authority to the attorney to make personal care decisions on their behalf, these may include;
- Where and with whom the donor should live;
- What training and rehabilitation the donor should receive;
- The donors dress and diet;
- The inspection of the donors personal papers.
What happens on the death of the donor?
When the donor dies, the powers given to the attorney under the enduring power of attorney cease. The donor’s estate is administered in the normal way – Grant of Probate / Letters of Administration are issued and his / her estate is distributed in accordance with terms of Will or Intestacy Rules.
In what circumstances can an enduring power of attorney cease?
- On the death of the donor.
- On revocation by the donor before registration, or by the Court after registration.
- An enduring power of attorney where the spouse of the donor is the attorney shall cease if there is a subsequent legal separation between the spouses.
- If only one attorney is appointed and he / she dies or becomes incapable of acting.
- On the bankruptcy of the attorney.
Can the donor change the person nominated as the attorney?
Yes, once the enduring power of attorney has not been registered. After registration, any changes must be executed by the Court.
Can the donor change his / her mind after executing the enduring power of attorney?
Yes, once the enduring power of attorney has not been registered. After registration, any revocation must be executed by the Court.
Does the ownership of the donors property change?
No. The donors property is not transferred into the attorneys name – it is invested by the attorney on behalf of the donor.