Sunday, June 25, 2017

Probate Advice And Information By Probate Solicitors Ireland

  • What is an Enduring Power of Attorney ?
  • Why is it necessary make an Enduring Power of Attorney ?
  • What are the steps to complete an Enduring Power of Attorney ?
  • How is an Enduring Power of Attorney registered ?

An Enduring Power of Attorney (EPA) is a legal document by which a person (referred to as "the donor") gives power to another person (referred to as their "attorney") to act in the future on behalf of the donor during any later mental incapacity.

The purpose of an Enduring Power of Attorney is to allow "the donor" to appoint someone of their own choosing to control all their affairs both personal and financial should they become mentally incapacitated through Alzheimer's disease, brain damage, stroke or other forms of dementia. Personal affairs can include decisions on where and with whom "the donor" lives; what medical treatments, training and rehabilitation "the donor" should receive; dress and diet; the inspection of personal papers. The donor can restrict the powers they bestow upon their attorney if they wish.

There are a number of steps to creating an Enduring Power of Attorney. The services of both a solicitor and a doctor are needed to create an Enduring Power of Attorney.

The appointment of one attorney in the Enduring Power of Attorney is sufficient but two is more usual (in the event of something happening to one or the other). The donor can appoint anyone they wish in the Enduring Power of Attorney but they must be over 18 years of age, not bankrupt, have no criminal convictions, have never been disqualified under the Companies Acts from acting as directors and cannot be an individual, a trust or a corporation who owns a nursing home in which "the donor" lives or be an employee or agent of the owner (unless that person is your spouse, child or sibling).

The solicitor must be satisfied that the Enduring Power of Attorney is not being created under duress or as a result of fraud and the Enduring Power of Attorney must include a statement from the solicitor stating that he/she is satisfied that the donor understands fully the effect of creating the Enduring Power of Attorney and that he/she believes "the donor" is acting of their own free will and not under the influence of another.

The doctor must provide a statement within 30 days of "the donor" being interviewed by the solicitor verifying that "the donor" had sufficient mental capacity and understood the effect of creating the Enduring Power of Attorney.

The donor is required to make a statement, after it has been fully explained to them by their solicitor, that they fully understood the effect of creating the Enduring Power of Attorney.

Two people must be notified when you create the Enduring Power of Attorney, informing them that this power has been created and who the appointed attorney/s are. If married and their spouse is still alive, one of the notice parties must be the spouse (if living with "the donor"). If unmarried, separated, divorced or widowed one of the notice parties must be your child (if you have children) or otherwise a relation such as a parent, sibling, nephew or niece. The other notice party can be of "the donor's" own choosing.

The EPA will only come into effect when it has been registered in the High Court. To register the appointed attorney must make an application to the Office of Wards of Court (a division of the High Court). This office is based in Phoenix House, Phoenix Street, Smithfield, Dublin 7. The attorney/s must notify the notice parties and "the donor" of their intention to register the Enduring Power of Attorney. The attorneys must also have a medical certificate from the doctor confirming that "the donor" is no longer capable of managing their own affairs. The donor and the notice parties have five weeks, from the date they received notification of the attorneys intention to register, in which to lodge an objection if they wish. The objections may be due to suspected fraud or undue pressure or that "the donor" is not actually mentally incapable.

An Enduring Power of Attorney can be revoked by "the donor" at any time before an application is made for the registration. If someone wants to revoke an Enduring Power of Attorney after the registration it is necessary to do so through the Courts.

Concerns about the way a registered Enduring Power of Attorney is being handled can be directed through the Office of Wards of Court. Whilst the attorneys are not required to keep the courts informed of their actions they are obliged to produce records and accounts if called upon to do so.

Dermot McNamara BCL,
Solicitor
Notary Public
Commissioner for Oaths

Collette Bryson BA (Hons)
Solicitor

Frances Cunneen T.E.P. Trust & Estate Practitioner

Lorraine Byrne

M.I.I.L.Ex, Legal Executive

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