An Enduring Power of Attorney (EPA) is a legal document by which one person (the donor) states that another person (the attorney) will have power to act in the future on the donor’s behalf during any later mental incapacity of the donor.
The EPA Process
The purpose of an EPA is to permit you to appoint someone of your choice to control your affairs should you become mentally incapacitated. This avoids a Ward of Court application being made where your property and money is brought under the control of the court.
Your solicitor must be satisfied that the EPA is not being created as a result of fraud and/or undue pressure. The document creating the EPA must include a statement by your solicitor that he or she is satisfied that you understand the effect of creating the power, that you are acting of your own free will and not acting under another’s influence.
A doctor is required to provide a statement verifying that at the time the document was executed you had sufficient mental capacity and you understood the effect of creating the EPA.
You are required to make a statement that you have understood the effect of creating the EPA. You must notify at least two other people when you create an EPA. One of these people must be your spouse if he or she is living with you. If you are unmarried, separated or widowed, one of the two people you must notify is your child (if you have children) or else a relation such as a parent, sister or brother, nephew or niece. If and when the attorney later applies to register the EPA these named relations of yours (called notice parties) must be told of this in writing.
When does an EPA come into effect
An EPA can only come into operation when it has been registered. A solicitor or the chosen attorney normally has custody of the EPA document until such time as they are registered in the High Court. To register an EPA, the appointed attorney must make an application (normally through his solicitor) when he or she sees that you are becoming mentally incapable. The application is made to the Office of Wards of Court in Dublin. Before an application is made, your attorney must notify you of his or her intention to make the application. The attorney must have a medical certificate confirming that you are no longer capable of managing your affairs. This notice must be given to you and to the two or more people (notice parties) who were notified when the EPA was created.
The donor and the notice parties have five weeks from the date they have received this notice of registration in which to lodge an objection in the Office of Wards of Court. An objection might be made about, for example, the unsuitability of the attorney, any suspected fraud or undue pressure on the donor to create an EPA or the donor not actually being mentally incapable.
An EPA can be revoked by you the donor at any time before an application is made for registration.
With an EPA, you may give your attorney(s) a general authority to act on your behalf in relation to all your affairs. You may include an authority to the attorney(s) to make personal care decisions on your behalf. These do not usually include medical decisions. At all times decisions must be made in your best interest. Personal care decisions made include, where and with whom you should live, what training and rehabilitation you should receive, your dress and diet and the inspection of your personal papers.
You can also make the EPA subject to particular restrictions or conditions. You can change the person who is nominated as your attorney at any time before the application for registration has begun and you can change your mind after executing an EPA once the stage of registration has not begun.
Once an EPA has been registered in the High Court then your attorney(s) have power to deal with and manage your affairs in accordance with the terms of your EPA.
For advice on creating an Enduring Power of Attorney in West Cork, please contact Kevin O’Donovan & Partners, Solicitors. Telephone 027 51440 or email info@kodon.ie and we would be delighted to discuss your requirements.