An Enduring Power of Attorney (EPA) is a signed and witnessed document that allows the person making it (the donor) to appoint another person or persons known as attorney/attorneys to conduct the donor’s affairs. The appointed attorney will have authority to make decisions on behalf of the donor in relation to their property and care and financial matters.
The EPA is used in instances where people fear that they may, at some point in the future, develop a mental incapacity and so will be unable to manage their affairs properly.
There is no requirement for the Attorney to be a relative of the donor. The donor can appoint anyone to act and may appoint more than one Attorney if they wish.
Who cannot act as Attorney?
- People under the age of 18
- People convicted of fraud
- People disqualified under the Companies Act
- An individual or trust corporation who own a nursing home in which the donor is residing
Parties to an EPA
The person who surrenders their decision-making role is the donor. The parties who are appointed to make decisions on behalf of the donor are known as attorneys. A medical doctor will also need to certify that the donor has the mental capacity to grant an EPA. The donor also needs to identify at least two people (notice parties) who are written to explaining that the donor has granted an EPA and to whom.
It is very important that you engage with your solicitor to ensure all the procedures for creating an enduring power of attorney are complied with.
The solicitor will have the knowledge and experience to advise on all aspects of drafting EPA. Where it involves a family member, it can be very stressful so professional assistance can ease the burden.
Once your solicitor has all the documentation ready, and the donor is medically certified as being incapable of managing his own affairs, the enduring power of attorney must be registered with the Wards of Court Office.
Notification must be given to the Registrar of Wards of Court, the donor and the notice parties, of intention to apply to have the power registered, after which, there is a five-week period, in which any of the parties can object to the registration if they wish.
Revoking an EPA
An EPA can be revoked by the Donor at any stage, before an application for registration is made. Once the EPA has been registered, it may only be revoked by way of an application to the High Court.
The Assisted Decision–Making (Capacity) Act (2015) will affect the EPA process and new procedures may be implemented. There is no certainty yet of what changes will be made, but watch this space…