What and Who is a Power of Attorney?

In Irish Law, A power of attorney is a written authorization (usually legally drafted by a solicitor) to represent or act on another’s behalf in private affairs, business, and legal matters in the event that you no longer have the mental capacity to do so yourself.

There are two types of Power of Attorney recognised under Irish law, An Ordinary Power of Attorney (OPA) and an Enduring Power of Attorney (EPA)

When is an ordinary Power of Attorney needed?

An Ordinary Power of Attorney can be used in circumstances where you still have a healthy mental capacity but require someone to act on your behalf in certain situations. One such example of when an OPA would be used is if you were not able to handle your day-to-day banking. In this situation an OPA is drafted granting someone you trust the authority to carry out this task on your behalf – An OPA is usually an Adult child, Sibling or relation.  An OPA is usually for a specific purpose but can also grant a general authority to the “Attorney” (the person authorised to act on your behalf). An OPA ceases if at some point in the future the “Donor” (the person making the OPA) becomes incapacitated.

When is an Enduring Power of Attorney (EPA) needed?

In contrast to an Ordinary Power of Attorney, an Enduring Power of Attorney does not become operable until such time as the Donor becomes incapacitated. What is meant by incapacity … “incapacity by reason of a mental condition to manage his or her own property or affairs”

An EPA allows you to appoint an “Attorney” to handle your affairs if same becomes necessary due to the lack of capacity of the “Donor”; a typical scenario is when an elderly person who’s mental health is in decline will grant their adult child the role as Enduring Power of Attorney.

The Attorney is the person named in the EPA that will take over handling your affairs. The Donor is the person making the EPA and granting authority to the Attorney to handle their affairs should they become incapacitated in the future. The Attorney does not have to be a lawyer, it can be a close relative or friend that you can trust to take over the handling your affairs and you can always name more than one Attorney.

The Donor can grant authority for the Attorney to do anything that the Donor themselves can legally do. The Donor can also place restrictions on the powers to be granted to the Attorney.

It is advisable to name more than one Attorney in an EPA. If the Donor has named only one Attorney and that Attorney dies or becomes incapacitated themselves then the EPA ceases to operate.

Advantages of having an Enduring Power of Attorney?

The main advantage of having an EPA is that the Donor gets to decide who is going to be given such a tremendous power over his/her life should they become incapable in the future. This obviates the need for the incapacitated person to be made a Ward of Court in the future.

Why does my Solicitor need a Medical Certificate?

Your solicitor will require a medical certificate from your treating doctor at the time of drafting the EPA which states that you have the mental capacity to give instructions to draft the EPA and that you fully understand the ramifications of what you are doing. This medical certificate will be sent directly by your solicitor to your treating doctor and there is no need for you to try and obtain same in advance of meeting with your solicitor.

If a treating doctor does not believe that the Donor has the mental capacity to understand what they are doing, then it will not be possible for the solicitor to take any further instructions with regard to drafting the EPA. Therefore, it is of the utmost importance that consideration be given to putting an EPA in place as early as possible.

According to The Alzheimer’s Society of Ireland there are currently over 64,000 people living with Dementia in Ireland with approximately 11,000 new cases being diagnosed each year. It is estimated that this figure will double over the coming years due to Ireland’s rising population.

When can an EPA legally take control?

An EPA has no legal effect until such time as it is registered. An Enduring Power of Attorney can be revoked at any time before registration (if the Donor has the capacity to revoke the EPA). This means that until the EPA is registered it has no legal effect.

Usually, the solicitor that has drafted the EPA will be contacted by the nominated Attorney when the Donor has become incapable or is becoming incapable. The Attorney will ask the solicitor to have the EPA registered.

Before the EPA is sent to the Registrar of Wards of Court for registration the Solicitor acting on behalf of the Donor will put the relevant family members on notice of the intended application and will seek certification from the Donor’s treating doctor that the Donor has become or is becoming incapable.

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