Enduring Power of Attorney: Your Questions Answered
End of life planning is never easy and can often be a difficult thing to discuss with your loved ones. However, if you are an elderly person, or have elderly parents, then being familiar with the concepts and laws surrounding end of life planning, especially Enduring Power of Attorneys (often referred to as EPAs) can be very important. There are numerous reasons why understanding the law surrounding Enduring Power of Attorneys is imperative to you and your family’s peace of mind, especially if you are in a position where one may likely be needed. The topic of EPA, and end of life planning generally, can be a difficult topic to think about, but it is important to have an Enduring Power of Attorney in place in case something happens and you can’t make decisions for yourself. As experts in the areas of elderly care law, we at Kevin O’Higgins Solicitors thought it best to put together a blog post to answer some of the most common questions people have regarding EPAs. We hope this information will help you make the best decision for you and your loved ones!
So What is an Enduring Power of Attorney?
In Ireland, an Enduring Power of Attorney is a legal document that allows you (the “donor”) to appoint someone else, generally a close family member, (the “attorney”) to make decisions on your behalf in the event that you lose the ability to do so for yourself in the future. This could be due to incapacity, mental illness or physical injury. Your attorney will have the power to make decisions over your financial affairs, your personal welfare, or both. The attorney must be over 18 years of age and must be someone you trust implicitly to make decisions in your best interests.
It is important to note that an Enduring Power of Attorney only comes into effect if, and when, you lose mental capacity. This means that the attorney can only make decisions on your behalf if a doctor has certified in writing that you are no longer mentally capable of making those decisions for yourself. This is to protect your interests and to ensure that the attorney only acts on your behalf when it is absolutely necessary.
Enduring Power of Attorney can be a very useful tool, especially for elderly people or those with chronic illnesses, as it gives peace of mind knowing that there is someone you trust who can make decisions on your behalf. As a result, it is very important to think long and hard about who you appoint as your attorney. This person should be someone you know very well and trust completely to make the best decisions for you, even if those decisions may not always be easy ones.
When is an Enduring Power of Attorney Necessary?
One of the most important considerations when deciding if an Enduring Power of Attorney is necessary or not is your family. How would your family cope if you were to lose capacity and were unable to make decisions for yourself? With exponential increases in medical care and life expectancy, it is important to have arrangements in place that anticipate the unthinkable.
As you are well aware, there are many ways in which someone can lose their decision making capacity and an Enduring Power of Attorney might be necessary. In Ireland, a terribly high number of instances occur due to dementia, Alzheimer and strokes. According to the Alzheimer Society of Ireland: “In Ireland, it is estimated that there are 55,000 people living with dementia. This figure is expected to rise to 150,000 by 2045.”
With such high numbers, and with medical advancements meaning that more and more people are surviving conditions that would have previously been fatal, the importance of end of life planning has never been more pressing. Situations such as these can be incredibly difficult for families to deal with, as it can be hard to know when the time is right to start making decisions on behalf of a loved one. Enduring Power of Attorney can take some of the pressure off by ensuring that there is someone in place who can make those decisions when the time comes. Having an EPA in place also acts to bypass a lot of potential disagreements and issues that could arise in your family regarding end of life care if you lose decision making capacity.
What Irish Laws Govern Enduring Power of Attorneys?
The Powers of Attorney Act, 1996 is the primary legislation governing Powers of Attorney in Ireland. This Act was amended by the Civil Law (Miscellaneous Provisions) Act, 2011. The 2011 Act inserted a new section, which provides that an Enduring Power of Attorney shall cease to have effect if the donor revokes it before losing mental capacity.
The Powers of Attorney Act, 1996 sets out the requirements which must be met for a valid Enduring Power of Attorney.
What if I Don’t Have an Enduring Power of Attorney in Place and Lose Mental Capacity?
If you do not have an Enduring Power of Attorney in place and lose mental capacity, your family will have to apply to the Court of Protection for a wardship order. Applications for wardship are a court based process and can be lengthy and expensive. It is much easier for everyone concerned if you have an Enduring Power of Attorney in place before such an unfortunate situation arises.
How Enduring is an Enduring Power of Attorney?
Under the Powers of Attorney Act 1996, an EPA only comes into effect if the donor loses mental capacity. In order for an EPA to come into effect, an application must be made to the High Court to have the Enduring Power of Attorney registered. You must also notify the Registrar of Wards of Court in writing of the intended registration. Once an EPA has been registered, it cannot be revoked unless a revocation is ratified and confirmed by the High Court.
Another thing to note is that an Enduring Power of Attorney ceases upon the death of the donor. Other situations where an EPA will cease to have effect is if the appointed attorney is a spouse of the donor and the marriage/civil partnership is ended by divorce, annulment, dissolution or judicial separation.
While it’s not something people like to think about, end of life planning and planning for the unthinkable is very important. Ensuring that you are prepared for what life may throw your way should be paramount, especially as you head towards the later chapters of your life. By having an Enduring Power of Attorney in place, can relieve your family and loved ones of some of the stresses and heartaches surrounding your end of life well-being and affairs. Here at Kevin O’Higgins Solicitors, we have years of experience in elderly care law and we would be delighted to answer any further questions you may have, or aid you in creating an Enduring Power of Attorney. Contact us today.