Power of Attorney
There are two types of Power of Attorney.
1. General power of attorney which gives either a specific or a general power and ceases as soon as the donor becomes incapacitated;
2. Enduring power of attorney which only takes effect on the incapacity of the donor;
General Power of attorney
A power of attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do).
Enduring power of attorney
The Enduring power of attorney may give general authority to the attorney to do anything that the attorney might lawfully do or it may merely give authority to do specific acts on your behalf. The general power given to the Attorney gives total power over all property including Bank accounts and property. It is possible to include restrictions i.e. that your house is not be sold. In addition the Attorney is normally authorised to take personal care decisions.
A personal care decision is one or more of the following:
The attorney does not have the power to make a decision as to whether or not a person suffering from dementia should undergo surgery.
Creating an enduring power of attorney
An enduring power of attorney involves the transfer of considerable powers from you to another person. The enduring power of attorney can only come into effect when certain procedures have been gone through and the courts have a general supervisory role.
The document creating the power must be in a particular format and must include the following:
1. A statement by a doctor verifying that in there opinion the donor had the mental capacity at the time that the document was executed to understand the effect of creating the power;
2. A statement from the donor that they understood the effect of creating the power;
3. A statement from a solicitor that they are satisfied that you understood the effect of creating the power of attorney;
4. A statement from a solicitor that you were not acting under undue influence;
At least two people must be notified of the making of an EPA, none of whom can be the attorney. One of the notice parties must be your spouse or civil partner (unless they are the attorney) if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).
Persons who cannot be appointed as an Attorney
An enduring power of attorney may be granted to individuals or trust corporations but may not be granted to the following people:
• People under the age of 18
• Bankrupts;
• People convicted of offences involving fraud or dishonesty;
• People disqualified under the Companies Acts;
• An individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, civil partner, child or sibling
Registration
In order to register an EPA, the attorney or attorneys make an application for registration to the Wards of Courts Office of the High Court once there is reason to believe that the donor is or is becoming mentally incapable. The attorney must have a medical certificate confirming that the donor is incapable of managing their affairs. Five weeks before making this application, the attorney must notify the donor and the notice parties of their intention to apply for registration. Within the five weeks, the donor or a notice party can lodge a notice of objection to the registration with the Wards of Court Office.
Revocation of an enduring power of attorney
The donor can revoke an EPA at any time before an application is made to register it. Once the EPA has been registered you cannot revoke it even if you are, for the time being, mentally capable. To revoke it, you would have to apply to the court.
Termination of an enduring power of attorney
An EPA ceases on the death of the donor. However, there are other circumstances in which an EPA ceases to have effect. For example, where a spouse or civil partner is the attorney, the EPA ceases where:
1. The marriage/civil partnership no longer exists due to annulment, divorce or dissolution;
2. A judicial separation is granted or the couple enter into a separation agreement;
3. A protection, barring or similar order is made on the application of either spouse/civil partner;
4. An EPA ceases where the attorney becomes one of the people listed above who cannot be granted enduring powers of attorney. The court can make an order cancelling an EPA;
1. General power of attorney which gives either a specific or a general power and ceases as soon as the donor becomes incapacitated;
2. Enduring power of attorney which only takes effect on the incapacity of the donor;
General Power of attorney
A power of attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do).
Enduring power of attorney
The Enduring power of attorney may give general authority to the attorney to do anything that the attorney might lawfully do or it may merely give authority to do specific acts on your behalf. The general power given to the Attorney gives total power over all property including Bank accounts and property. It is possible to include restrictions i.e. that your house is not be sold. In addition the Attorney is normally authorised to take personal care decisions.
A personal care decision is one or more of the following:
- Where and with whom you should live
- Whom you should see and not see
- What training and rehabilitation you should get
- Your diet and dress
- Inspection of your personal papers
- Housing, social welfare and other benefits
The attorney does not have the power to make a decision as to whether or not a person suffering from dementia should undergo surgery.
Creating an enduring power of attorney
An enduring power of attorney involves the transfer of considerable powers from you to another person. The enduring power of attorney can only come into effect when certain procedures have been gone through and the courts have a general supervisory role.
The document creating the power must be in a particular format and must include the following:
1. A statement by a doctor verifying that in there opinion the donor had the mental capacity at the time that the document was executed to understand the effect of creating the power;
2. A statement from the donor that they understood the effect of creating the power;
3. A statement from a solicitor that they are satisfied that you understood the effect of creating the power of attorney;
4. A statement from a solicitor that you were not acting under undue influence;
At least two people must be notified of the making of an EPA, none of whom can be the attorney. One of the notice parties must be your spouse or civil partner (unless they are the attorney) if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).
Persons who cannot be appointed as an Attorney
An enduring power of attorney may be granted to individuals or trust corporations but may not be granted to the following people:
• People under the age of 18
• Bankrupts;
• People convicted of offences involving fraud or dishonesty;
• People disqualified under the Companies Acts;
• An individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, civil partner, child or sibling
Registration
In order to register an EPA, the attorney or attorneys make an application for registration to the Wards of Courts Office of the High Court once there is reason to believe that the donor is or is becoming mentally incapable. The attorney must have a medical certificate confirming that the donor is incapable of managing their affairs. Five weeks before making this application, the attorney must notify the donor and the notice parties of their intention to apply for registration. Within the five weeks, the donor or a notice party can lodge a notice of objection to the registration with the Wards of Court Office.
Revocation of an enduring power of attorney
The donor can revoke an EPA at any time before an application is made to register it. Once the EPA has been registered you cannot revoke it even if you are, for the time being, mentally capable. To revoke it, you would have to apply to the court.
Termination of an enduring power of attorney
An EPA ceases on the death of the donor. However, there are other circumstances in which an EPA ceases to have effect. For example, where a spouse or civil partner is the attorney, the EPA ceases where:
1. The marriage/civil partnership no longer exists due to annulment, divorce or dissolution;
2. A judicial separation is granted or the couple enter into a separation agreement;
3. A protection, barring or similar order is made on the application of either spouse/civil partner;
4. An EPA ceases where the attorney becomes one of the people listed above who cannot be granted enduring powers of attorney. The court can make an order cancelling an EPA;