Powers of Attorney

Introduction

A power of attorney is a legal device in Ireland that can be set up by a person (the donor) to allow another specially appointed person (the attorney) to take actions on the donor's behalf.

There are two types of power of attorney allowed under Irish law:

  • A power of attorney which gives either a specific or a general power and ceases as soon as the donor becomes incapacitated
  • An enduring power of attorney which takes effect on the incapacity of the donor

A power of attorney is just one of the legal arrangements you can make in the event you become incapacitated or unable to deal with your affairs.

The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996.

Part 7 of the Assisted Decision-Making (Capacity) Act 2015 provides for new arrangements for those who wish to make an Enduring Power of Attorney. When the 2015 Act is commenced, no new Enduring Power of Attorneys will be created under the 1996 Act. However, enduring powers of attorney correctly made under the 1996 Act will remain valid.

Types of power of attorney

There are two types of power of attorney allowed under Irish law:

  • A power of attorney which gives either a specific or a general power and ceases as soon as the donor becomes incapacitated
  • An enduring power of attorney which takes effect on the incapacity of the donor

Both cease on the death of the donor.

If someone in Ireland is mentally incapacitated (for example, because of illness, disability or a progressive degenerative illness), all of their assets and property are normally frozen and cannot be used by anyone else unless the assets are jointly owned, the person has made an enduring power of attorney to deal with their property/money or is made a ward of court.

Power of attorney

A power of attorney can be either:

  • Specific - Limited to a particular purpose, for example, sale of your house in your absence, or for a particular period of time
  • General - Entitling the attorney to do anything you could do

A general power of attorney allows the attorney to take a wide range of actions on the donor's behalf in relation to property, business, and financial affairs. They can make payments from your accounts, make provision for your needs, and make appropriate gifts to your relations or friends.

You do not need a solicitor to create a general power of attorney. It can be created when signed either by you or at your direction and in the presence of a witness. However, you should get legal advice before you sign a form appointing someone else to manage your affairs. You can appoint anyone you wish to be your attorney.

A power of attorney is no longer valid if you become mentally incapacitated.

A form of general power of attorney is given in the Third Schedule of the Powers of Attorney Act 1996 (pdf).

Enduring power of attorney

An enduring power of attorney only takes effect when the donor becomes mentally incapacitated and no longer able to manage their own affairs.

The EPA can give general authority to the attorney to do anything that the attorney might lawfully do or it may merely give authority to do specific acts on your behalf.

The attorney may make certain personal care decisions on your behalf - these must be made in your best interests, must be in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions. The attorney is considered to be acting in your best interests if they reasonably believe that what they decide is in your best interests.

A personal care decision is a decision concerning one or more of the following:

  • Where and with whom you should live
  • Whom you should see and not see
  • What training and rehabilitation you should get
  • Your diet and dress
  • Inspection of your personal papers
  • Housing, social welfare and other benefits

The list does not include health care decisions, although the borderline between personal care and health care decisions is not always clear. However, it seems clear that the attorney does not have the power to make a decision as to whether or not a person suffering from dementia should undergo surgery.

You must have the mental capacity to execute an EPA. If you become mentally incapacitated and have not executed an EPA, the person who wants to look after your interests can apply to the High Court to have you made a ward of court.

The procedure for creating an enduring power of attorney is much more complex than that for creating a general power of attorney.

Creating an enduring power of attorney

Because the enduring power of attorney involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you from abuses.

The procedure for executing the enduring power of attorney is complex and you have to use a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through. The courts have a general supervisory role in the implementation of the power.

The document creating the EPA must be in a particular format and must include the following:

  • A statement from you that you understood the effect of creating the power
  • A statement by a doctor verifying that in their opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power
  • A statement from a solicitor that they are satisfied that you understood the effect of creating the power of attorney
  • A statement from a solicitor that you were not acting under undue influence
  • A statement by the chosen attorney or attorneys that they understand their obligations and agree to be an attorney

At least 2 people must be notified of the making of an EPA, none of whom will be the attorney. One of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).

Who cannot be appointed as an attorney?

An enduring power of attorney may be granted to individuals or trust corporations but may not be granted to the following people:

  • People under the age of 18
  • Bankrupts
  • People convicted of offences involving fraud or dishonesty
  • People convicted of an offence against you
  • People disqualified under the Companies Acts
  • An individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, civil partner, child or sibling

When should an enduring power of attorney be registered?

The EPA only fully comes into force when it has been registered. However, once an application to register the EPA has been made, the attorney may take certain limited actions in accordance with powers granted in the EPA to maintain you and prevent loss to your estate. The attorney may also maintain themself and other persons, in so far as it is permitted under Section 6 (4) of the 1996 Act. The attorney may also make any personal care decisions permitted under the powers that cannot reasonably be deferred until the application for registration has been determined.

Also, in certain circumstances before the EPA is registered, application may be made by an interested party to the court to exercise the EPA's powers under Section 12 of the Act.

In order to register an EPA, the future attorney makes an application for registration to the Registrar of Wards of Court, once there is reason to believe that you are or are becoming mentally incapable. The attorney must have a medical certificate confirming that you are incapable of managing your affairs.

Five weeks before making this application, the attorney must notify you and the notice parties of his/her intention to do so. Within the 5 weeks, the donor or a notice party can lodge a notice of objection on one of the grounds given in Section 10 (3) of the Act with the Registrar of Wards of Court.

The role of the High Court

The High Court has an extensive supervisory role in respect of the EPA. Among other things, the court has power to give directions about the management and disposal of your property. The court may confirm the revocation of a power of attorney if it is satisfied that you were mentally competent to revoke it. The court can order cancellation of the power where it is satisfied that:

  • You are mentally capable and likely to remain so
  • The attorney is unsuitable
  • Fraud or undue pressure was used to induce you to create the power

Revocation of an enduring power of attorney

The donor, if mentally capable, can revoke an EPA at any time before an application is made to register it. Once the EPA has been registered it cannot be revoked even if you are, for the time being, mentally capable unless you make an application to court.

Termination of an enduring power of attorney

An EPA ceases on the death of the donor. However, there are other circumstances in which an EPA ceases to have effect. For example, where a spouse or civil partner is the attorney, the EPA ceases where:

  • The marriage/civil partnership no longer exists due to annulment, divorce or dissolution
  • A judicial separation is granted or the couple enter into a separation agreement
  • A protection, barring or similar order is made on the application of either spouse/civil partner

An EPA ceases generally where the attorney becomes one of the people listed above who cannot be granted enduring powers of attorney. The court can make an order cancelling an EPA where, for example, it finds the attorney is unsuitable.

Register of enduring powers of attorney

The Office of Wards of Court maintains a register of EPA instruments which have been registered in the office. The register can be viewed by the public for free. A fee of €15 is payable if you wish to take a copy of an entry in the register.

Where to apply

Office of Wards of Court

3rd Floor
15/24 Phoenix Street North
Smithfield
Dublin 7
Ireland

Tel: +353 (0)1 888 6189
Page edited: 18 March 2021