A Power of Attorney (POA) is a legal arrangement that permits another person to act for you in financial matters and other matters of personal care.
There are two types of power of attorney: General POA and Enduring (EPA)
A general power of attorney is valid only while the donor has capacity and can be used for a specific period or purpose. An enduring power of attorney, on the other hand, continues to be valid even if the donor loses capacity.
General power of attorney
A general power of attorney lets you select someone to act for you while you have the capacity to manage your own affairs. You can let them act in general or for a specific purpose such as the sale of a house. This can be useful if, for example, you are travelling for long periods of time.
You must have the legal capacity to give the power of attorney. It lasts until you withdraw it. It no longer has any effect if you become mentally incapable, if you marry/enter a civil partnership, or if you are declared bankrupt.
An Enduring Power of Attorney: (EPA)
By executing an Enduring Power of Attorney, you will appoint one (or two) persons to look after your affairs in the event that you are no longer capable of looking after your own interests in the future. Your capacity in the future will be decided by your Doctor or Consultant.
The attorney does not have the power to give consent to medical treatment or to decide whether medical or surgical treatments to prolong life should be given.
The attorney may make certain personal care decisions – such as diet, dress, housing , social welfare. These decisions must be made in your best interests and be in accordance with what you would have been likely to do. The attorney must consult family members and carers in making these decisions.
You can use An Advance Healthcare Directive (AHD) – to provide direction to healthcare professionals to care for you according to your specified wishes, and clarity to families about the care you requested. An AHD is a written statement about the medical or surgical treatment you want in the future if you will not be able to make that decision at the relevant time. For example, you may not want to be resuscitated if your heart stops beating, or you may not want to be kept alive with the use of a ventilator. It is sometimes known as a living will, advance statement, advance decision or advance refusal.
There are three stages to an EPA .
The first stage is the creation of the EPA. Your solicitor and doctor must be involved . The person creating the EPA is the “donor”. The donor is required to specify what powers the attorney is to have. These powers may be very general or they may be subject to conditions or restrictions.
It must include
- a statement from the doctor that the donor had the mental capacity to sign it at the time it was signed and understood the effect.
- a statement from the donor to the effect that he knew the consequences of creating the enduring power of attorney
- a statement from a solicitor that the donor had the capacity to make the enduring power of attorney, and that the donor was not acting under any duress or undue influence.
The donor must also give notice of the EPA to 2 other people . At least one of the notice parties must be the donor’s spouse if living with the donor.If the donor is unmarried widowed or separated notice must be given to a child of the donor if applicable or otherwise to any relative.
EPAs made on or after 26 April 2023
From 26 April 2023 – all new EPAs must be registered with the Decision Support Service within 3 months of being made. The Decision Support Service must also be notified when the donor loses capacity. The Decision Support Service then supervises and monitors the EPA to make sure that the donor’s interests are protected.
Activating an Enduring Power of Attorney:-
An EPA that was made on or after 26 April 2023
This only takes effect if registered with the Decision Support Service, the donor becomes incapacitated and unable to manage their affairs, the Decision Support Service has been notified of the incapacity and it accepts that fact.
When the attorney has reason to believe that the donor lacks capacity in relation to a decision in an EPA, the donor must inform the Decision Support Service. The notification must be accompanied by statements by 2 doctors supporting that belief. The donor and a number of other persons must also be put on notice of the notification to the Decision Support Service.
Within 5 weeks, the donor or a notice party can lodge a notice of objection on one of the grounds given in Section 71B of the Act with the Decision Support Service.
On EPAs after 26 April 2023 – attorneys must submit a written report to the DSS every year, which sets out details of the costs, expenses or money paid to the attorney. They must keep proper accounts and records. The DSS can send a general visitor or a special visitor to talk to your attorney if they get a complaint, or if they want to check that the attorney is acting in your best interests.
An EPA that was made before 26 April 2023
This only takes effect if registered with the Office of the Ward of Courts.
When the EPA is created, nothing happens unless or until you become mentally incapable. At this stage, the EPA must be registered.
The attorney(s) has to make an application to the Registrar of Wards of Court once there is reason to believe that you are or are becoming mentally incapable.
(Enduring Powers of Attorney queries: epa@courts.ie –
(Telephone : 01 888 6189 / 6140 /6210 )
Before making this application the attorney must notify the donor of his/her intention to do so.
The attorney must have a medical certificate confirming that you are incapable of managing your affairs.
A notice of the attorney’s application must be served on the donor and on a number of other people including the people who were notified of the creation of the EPA (any of the notice parties may object to the registration of the EPA).
Five weeks is given to wait for any objections – then it could take another 4 weeks to register to EPA.
EPA Costs and Fees :
Solicitors fee for drafting and executing and registering power of attorney in Ireland can vary drastically across the country.
It seems it can cost anything from €450 plus VAT to as much €2000 plus VAT to set up an EPA . (Doing it for a couple will usually not cost double.)
Registration of an EPA can then cost anything from €800 to as much as €2500 plus VAT .
Some solicitors seem to charge as much as they can get away with – so shop around if possible.
Some of those higher levels of fees do not actually reflect the work involved in registering an EPA, nor does it reflect the costs associated with registering a EPA.
If someone doesn’t have an Enduring Power of Attorney , the only option available, if they become mentally incapacitated (through old age, illness or trauma), is to make an application through the High Court under the Wards of Court process. In this scenario, the court has the power to make decisions on your behalf, where you have been proved as an adult to be of unsound mind. Your property and money is brought under the control of the court and the Courts Service will have the duty of overseeing these in your best interest.
A recent Red C survey found:
- 6% of people said they currently have an Enduring Power of Attorney
- Take up was highest among 18-34 year olds at 8%, followed by those aged 55+ at 7% and 9% for over 65s. It was lower for middle age cohorts at just 4%
- Higher income social class groupings were much more likely to have an EPA at 11%
- Uptake was higher in Dublin at 9%, and it was notably lower in Connacht / Ulster at 3%.
More info here at Safeguarding Ireland
