Enduring Power of Attorney: Your Questions Answered

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.

Enduring Power of Attorney: Your Questions Answered

Finding the Right Solicitor to Make Your Will

Finding the Right Solicitor to Make Your Will.

Making a will can be a complex legal process. There are many varying steps that require a level of detail that may lead to complications or misunderstandings. Therefore, finding the correct solicitor to develop your will can be a crucial choice – ensuring that your loved ones stay out of court, avoid dispute, and so on. Making a will is not required by law in Ireland, but it is an important step in ensuring that your estate is divided amongst your loved ones as you wish. In this blog, we will take a deep dive into the will-making process in Ireland and how matching the right solicitor with the right circumstances can prevent future headaches further down the road.

 

Before we begin this blog, it is important to have an understanding of some legal definitions when it comes to will-making/probate law, as they will crop up throughout.

Estate – Simply, the possessions that you own and/or intend to divide among your chosen beneficiaries.

Beneficiaries – The recipients of your estate. 

Testator – The person who writes the will i.e the person with the capacity to make the will.

Intestate – If you pass away without leaving a will, you are said to have died ”intestate”.

Witness – The people or persons chosen to oversee the signing of the will and guarantee its validity.

Executor – The person entrusted to carry out the wishes of the will maker upon his or her passing.

 

When it comes to making a will in Ireland, there are many things to consider. There are also a certain number of legal requirements that must be met. You must be over the age of 18 and of sound mind to make a will. The will must also be officially laid out in writing, with your confirmed signature and the signature of two witnesses, present at the will’s completion.

Before we begin this blog, it is important to have an understanding of some legal definitions when it comes to will-making/probate law, as they will crop up throughout.

Factors to consider when deciding to make a Will

If you die without having made a will, you are said to have died intestate and your estate will be distributed according to the rules of intestacy. This may not be in line with your wishes and can cause disharmony and disputes among your loved ones.

One very important thing to consider when drafting a will is who you would like to appoint as Executor/s of your will. The Executor is the person who will be responsible for administering your estate in accordance with the terms of your will. This can be a daunting task and you should consider appointing someone you trust implicitly to carry out your final wishes.

You must also be aware of the potential for inheritance tax in Ireland – known as Gift and Inheritance Tax (Capital Acquisition Tax). This is a tax that is payable on the value of your estate above a certain threshold. The rate of inheritance tax is currently 33% but there are some reliefs and exemptions which can reduce this liability. Your will can be drafted with the impact of inheritance tax in mind. This is why it is incredibly important to employ the expertise of a solicitor when drafting your will. A good probate solicitor will be able to navigate the legal requirements to pay inheritance tax to ensure all relevant taxes are paid, while also ensuring your loved ones receive the appropriate amount of your estate.

Another thing to note, your assets are not the only thing to be considered when you are drafting your will. If you are someone with young children or dependents, another very important consideration when making your will is guardianship – who will care for your children if the unthinkable happens. You can appoint a guardian in your will to ensure that your children are cared for in the event of your passing.

What Should be the Contents of My Will?

A defined format for a will does not exist. According to Irish Probate Law, the will does not have to follow any particular order, but it must include the name and address of the testator, a revocation of any previous will that may have been produced, a named and appointed ”executor” along with their address. It is also advisable to list any assets and debts that the will maker has at the time of writing the will. This can be extremely helpful for the Executor as it gives them a starting point when it comes to distributing the estate.

Once these basic requirements have been met, you are free to include anything else in your will that you see fit. It is important to note that any Will made in Ireland must be signed by the testator and two independent witnesses in the presence of each other. The will must also be dated.

Ensuring that your will is drafted with the aid of a solicitor is imperative to avoid the creation of “DIY wills”, something which the courts in Ireland have had to contend with. The main reason for the existence of DIY wills is that people often try to avoid the perceived hassle and expense of employing a probate solicitor. However, the time, energy and cost of dealing with probate disputes and litigation off the back of an improperly prepared will, will almost certainly outweigh any initial expense.

Changing your Will in the Event of a Change of Circumstances

Once a will has been written, it does not mean it has to be set in stone.  If there are any developments in your personal circumstances, it is important to review your will and make any necessary changes.

If you wish to implement these changes, the testator can add a separate document, referred to as a codicil.  A Codicil is simply an amendment to an existing will and must be signed and witnessed in the same way as the original will. It is advisable to have your will reviewed by a solicitor every few years, or sooner if there are any major changes in your life such as marriage, divorce, birth of children etc.

However, if the circumstances have changed drastically, it might be more efficient to revoke the will entirely. To do this, you must destroy, burn or tear the will and all copies of it. From here, you should work with your solicitor to draft a new will to reflect your new wishes and change in circumstances.

The Role of the Solicitor in Making a Will

While it is possible to write your own will, it is highly advisable for one to employ the services of a highly qualified probate solicitor to write it for you, such as what we have on offer here at Kevin O’Higgins Solicitors. The role of the solicitor in this process can be dictated by you. You may wish for the solicitor to simply draft the will in accordance with your wishes or you may want the solicitor to take a more active role and advise you on tax planning, asset protection, the creation of a trust or other matters relating to your estate.

It is also worth noting that only a solicitor can certify a will for safekeeping by the Probate Office. This is important as, if you were to die without a will or with an invalid will, your estate would be distributed in accordance with the rules of intestacy which may not be in line with your wishes.

There is no set cost in the will-writing process, as the amount you pay will be dictated by the role you want your solicitor to take and the complexity of your estate.

At Kevin O’Higgins solicitors, we understand that each person’s circumstances are unique and we tailor our service to suit your individual needs.

Matching my Circumstances with the Right Solicitor

When looking for a solicitor to assist in the will-making process, it is important that you find somebody who you are comfortable with and who you feel confident will act in your best interests. You should also ensure that the solicitor has the relevant expertise and experience in Irish will-writing and Probate Law.

Once you have found a solicitor that you feel meets these criteria, it is important to discuss your individual circumstances with them and ensure that they understand your wishes. This will allow them to provide you, confidentially, with the best possible service and advise you on the most efficient way to distribute your estate.

 

Conclusion

At Kevin O’Higgins Solicitors, we pride ourselves on providing a personal and professional service to each of our clients. We take the time to get to know you and your circumstances so that we can provide you with the best possible advice.

If you would like more information on will-writing or any other probate law matters, please do not hesitate to contact Kevin O’Higgins Solicitors today.

Making a Will in Ireland – Your Questions Answered

Making a Will in Ireland – Your Questions Answered

The act of making a will is not something that most people like to think about. After all, it means coming to terms with our own mortality. End of life planning is a sensitive subject that people often prefer to not address, however, it is an important conversation to have and a conversation to begin sooner rather than later.

The importance of making a will can never be understated. It is one of the most important things you can do to protect your loved ones and ensure that your wishes are carried out after you pass away. If you have children, a will is an essential document. It protects your children and provides for them financially should you die. If you do not have children, a will allows you to decide exactly who will receive your possessions and estate after you die and can help to avoid any family disputes.

Many people put off making a will because they are not sure where to start or what they need to know before they begin the process. This blog post will answer some of the most commonly asked questions around making a will in Ireland so that you can be better informed and feel more confident about taking this important step.

Why Do I Need a Will?

A will is vital in ensuring that your wishes are carried out after you die and that through the appropriate distribution of your estate, your loved ones are taken care of financially. If you have young children, a will allows you to appoint a guardian for them should you die and make sure your money, belongings and assets are passed down accordingly when they come of age. This is also referred to as your “estate”. Your estate is everything you own including your house, car, savings, investments and personal belongings. It is not the assets you possess at the time of signing your will, but the assets you possess at the time of your passing. This is the estate that will be distributed as you wish through your will.

The benefits of a will do not end with your family’s financial security. There are numerous other benefits such as;

  • You may use your will to describe your wishes in death, such as whether you want to be buried or cremated, and what type of ceremony you would like carried out in the event of your passing.
  • If you are unmarried and have a partner, a will is a perfect way to guarantee that they will be covered under the law.
  • You can use your will to support charities or causes that you care about by including them as beneficiaries in your will.
  • A will can also help to avoid any family disputes that may arise after your death as it provides clear instructions on how you would like your estate to be divided. It will be one less thing for your family to worry about at a time when they are already suffering the loss of someone they cared deeply for.
  • Making a will can provide you with great peace of mind, knowing that all your affairs are in order is a weight lifted off your shoulders. It allows you to live your life to the fullest, safe in the knowledge that should anything happen to you, those you love will be taken care of.

What Will Happen if I Don’t Make a Will?

If a person dies without having made a will in Ireland they are said to have died “intestate”, and their estate will be distributed according to the intestacy rules. Their estate will subsequently be distributed in accordance with the Succession Act 1965. The Succession Act of 1965 establishes the estate distribution in line with anybody who is designated as a deceased person’s surviving family, be it spouse, civil partner, or child.

For example if you are survived by a spouse or a civil partner they will inherit your estate, or if you are not survived by children or relations the State will inherit your estate. It’s possible though that these default lines of distribution aren’t the way you want your estate to be administered and without a will in place your wishes can be easily misconstrued.

How Do I Make a Will?

It is strongly advised to contact a solicitor to assist in the process of writing your will. A will is a legally binding document and as such there are certain rules and regulations that must be adhered to in order for it to be considered valid under the eyes of the law:

  • You must be over 18 years of age
  • You must be of sound mind
  • The will must be in writing
  • The will must be signed by you in the presence of two independent witnesses who are both present at the same time
  • Additionally, both witnesses must sign the will in your presence and in the presence of each other.
  • The signatures must be located at the end of the will

You can prepare your own will or you can instruct a solicitor to do it on your behalf. If you prepare your own will it is advisable to have it checked over by a solicitor to ensure that it meets the legal requirements and covers everything you want it to. We will cover the benefits of hiring a solicitor in greater detail shortly.

What Information Does My Solicitor Need to Prepare My Will?

At the very least, your will should cover the following:-

  • Your personal details including your full name, address, date of birth and nationality
  • The names, addresses and dates of birth of your spouse or civil partner and any children you have
  • Who you would like to benefit from your will and how. You can leave specific items or sums of money to people (known as “specific bequests”) or you can leave everything to one person.
  • Who you would like to appoint as executor(s) of your estate. Furthermore, you may want to appoint more than one person as joint executors. This means they will share the responsibility for dealing with your estate.

An executor is the person, chosen by the deceased, to deal with the administration of the will upon the deceased’s passing. It is the responsibility of the executor to take out “probate” on a will. The process of taking out probate involves the executor bringing the will to the Probate Office – the Irish body responsible for recognising the legality of a will – to ensure that the will is legal and binding and that all financial and tax matters regarding the will are in order. A will can only then come into effect once the Probate Office signs off on its validity. If a deceased has no will then the individual tasked with handling the person’s estate is known as an “administrator”.

It is important to bear in mind that there are statutory entitlements under the Succession Act in regards to whether or not you have children and what they are entitled to. Up until 1965, a person’s estate was theirs to do with as they pleased after their death, regardless of their spouse or children’s circumstances. However, under Section 117 of the Succession Act, a child can contest a will if they feel that they have not been adequately provided for.

If the court decides that the child has not been adequately provided for, they can make an order for “provision” to be made from the estate. This means that the court can award a lump sum of money or transfer property to the child out of the estate, or make some other order for the child’s benefit. These are exactly the type of necessary, legal provisions that an experienced solicitor can help navigate.

Can I Amend my Will?

You can and should review your will at least every five years or whenever a major life event occurs, such as getting married, having children, buying a property or receiving an inheritance. If you don’t review your will and something happens that isn’t covered by it, your estate may not be distributed according to your wishes.

Is it Risky to Forego a Solicitor When Making a Will?

While it is possible to make a will without using a solicitor, it is heavily advised against. This is because the legal requirements for a valid will are quite specific, and if even one of them is not met correctly, the will may be found to be invalid. If you use a solicitor to prepare your will, they will ensure that all the necessary requirements are fulfilled down to the finest detail.

What Can a Solicitor Do in Helping Me Make a Will?

A solicitor can help you with a will in a number of ways. First, they can ensure that your will meets all the legal requirements for it to be valid. Second, they can help you to decide what should go into your will. This includes deciding who should be the executor of your estate and who should benefit from your estate. Thirdly, they can help you to change your will if you need to. This could be because you have married, divorced, had children or bought a property since you made your last will. Finally, they can keep your will safe for you. This is important because if your will cannot be found when you die, it may be considered to have been destroyed and will therefore be invalid.

As you can see, there are many tricky legal provisions and potential pitfalls when it comes to making a will. This is why it is always best to seek the advice of a solicitor when doing so. There is much to be said for the peace of mind that comes with knowing your affairs are in order and being managed by someone with years of experience. If you have any further questions about making a will, or would like to make an appointment to have your will prepared, please contact us at Kevin O’Higgins Solicitors. We would be happy to help you.