Enduring Powers of Attorney explained
What is an Enduring Power of Attorney? An Enduring Power of Attorney is a document whereby a person sets out who is to manage their property and affairs in the event of them becoming mentally incapable of doing so.
2. What is an “Attorney”? This is the person(s) who is/are appointed by you to act on your behalf in the event of you becoming mentally incapable of managing your own property and affairs.
3. What information do I need in order to make an Enduring Power of Attorney? (a) The name and address of the person who you want to be your Attorney in the event of you becoming mentally incapable. You can appoint more than one Attorney.
(b) You need to decide on the extent of the powers you wish to give your Attorney. You can give him general power in relation to all your property and affairs so that he will be able to deal with your money or property and sell your house. Alternatively you can restrict the powers given e.g. you can specify that your house is not to be sold.
(c) You can authorise the Attorney to take certain personal care decisions on your behalf e.g. where you live, what clothes you wear, what type of food you eat. You can also name a person that your Attorney must consult in relation to any such decisions.
(d) The names and addresses of two people who must be notified of the fact that you have made an Enduring Power of Attorney. There are specific rules as to who these parties must be. None of them may be an Attorney under the Power. At least one must be your spouse if living with you. If you are unmarried, widowed or separated notification must be given to your child (if applicable) or otherwise to specified relatives.
(e) The name and address of your doctor who will be required to sign a statement as soon as possible after you sign the Enduring Power of Attorney confirming that in their opinion that at the time you made the Enduring Power of Attorney you were competent to do so. Your solicitor will also have to sign a similar statement.
4. How do I make an Enduring Power of Attorney? The procedure for the making of Enduring Powers of Attorney is set out in the Enduring Power of Attorney Regulations being Statutory Instrument Number 196 of 1996.
5. When and how does the Enduring Power of Attorney take effect? The Enduring Power of Attorney only comes into force when it is registered in the High Court.
This will only occur if the Attorney believes that you have become or are becoming mentally incapable of managing your affairs. In order to register the Enduring Power of Attorney the Attorney must notify you and the two parties previously notified by you of the making of the Enduring Power of Attorney of his intention to do so. He must also notify the Registrar of The Wards of Court of his intention to do so. This gives you and the two parties mentioned above an opportunity to dispute the matter if you or the two parties disagree with the Attorneys intention to register the Enduring Power of Attorney.
6. Miscellaneous Information regarding Enduring Powers of Attorney. (a) Unless you put in a restriction preventing it your Attorney will be able to use any of your money or property to benefit himself or other people by doing what you yourself might be expected to do to provide for their needs.
(b) You can appoint an Attorney to act in the event that the original Attorney(s) is unable or unwilling to act.
(c) Your Attorney can recover the out of pocket expenses of acting as your Attorney. You can also provide for the Attorney’s remuneration.
(d) While the Attorney has applied and is waiting for registration of an Enduring Power of Attorney he is entitled to take action under the Power to maintain you and prevent loss to your estate and maintain yourself and other persons insofar as that is permitted. He can also make any personal care decisions permitted under the Power that cannot reasonably be deferred until the application for registration has been determined.
(e) Unless there is a restriction in the Enduring Power of Attorney preventing it the Attorney may use your money or other property for your benefit or that of any other people to the extent by doing what you might be expected to do to provide for you or their needs. The Attorney cannot use your money to make gifts unless there is specific provision to that effect in the Power and then only to persons related to or connected with you on birth or marriage anniversaries or to charities to which you made or might be expected to make gifts. The amounts of any such gifts are subject to any restrictions in the Enduring Power of Attorney and in any event may only be for reasonable amounts in relation to the extent of your assets.
(f) The Attorney is obliged to keep proper accounts of your property and affairs and to produce accounting records to the High Court if required. The Attorney is in what is known as a fiduciary relationship with you and must use proper care in exercising on your behalf the authority given by the Enduring Power of Attorney and can only act within its scope. The Attorney must observe any conditions or restrictions imposed by the Power and also the limits imposed by the Powers of Attorney Act 1996.
(g) An Attorney can at any time up to registration of the Enduring Power of Attorney refuse to act as Attorney.
7. How do I go about making an Enduring Power of Attorney? You should firstly assemble the information referred to at 3(a) –(e) above and then contact your solicitor with a view to arranging an appointment to enable them to take full instructions from you to prepare the Enduring Power of Attorney document.