Power of Attorney
Power of attorney is a legal device in Ireland that can be set up by a person (the donor) during his/her life when he/she is in good mental health. It allows another specially appointed person (the attorney) to take actions on the donor's behalf if he/she is absent, abroad or incapacitated through illness. 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.
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 they are jointly owned or, someone has power of attorney to deal with their property or money.
In a larger sense, power of attorney is just one of the legal arrangements that you can make during your lifetime, in the event you become incapacitated or unable to deal with your affairs. Information to help guide you in recording and registering your preferences in the event of emergency, serious illness or death is available at Thinkahead.ie, where you can also download the Think Ahead Form. Read more about the legal arrangements in the event of incapacity here.
Types of power of attorney
There are two types of power of attorney allowed under Irish law:
- Power of attorney which gives either a specific or a general power and ceases as soon as the donor becomes incapacitated
- Enduring power of attorney which takes effect on the incapacity of the donor
Both cease on the death of the donor. However, it may be difficult to prove that the donor is dead if his/her body cannot be found, for example, as in the case of a death by drowning. Once the body is found or the donor is declared to be "believed dead" by a court (usually after 7 years have passed), the power of attorney (if there was one) ends and their affairs are dealt with in the normal way by will or under intestacy law.
Power of attorney
A power of attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do). For example, it may allow the attorney to take a wide range of actions on the donor's behalf in relation to property, business, and financial affairs. He/she may make payments from the specified accounts, make appropriate provision for any specified person's needs, and make appropriate gifts to the donor's relations or friends.
You do not require 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, it is advisable to 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 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 (EPA) also allows the attorney to make "personal care decisions" on the donor's behalf once he/she is no longer fully mentally capable of taking decisions themself. Personal care decisions may include deciding where and with whom the donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the donor wants, he/she can specifically exclude any of these powers when setting up the power of attorney or can make the attorney's powers subject to any reasonable conditions and restrictions.
You can appoint anyone you wish to be your attorney, including a spouse, civil partner, family member, friend, colleague, etc. 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 requires the involvement of a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through and the courts have a general supervisory role in the implementation of the power.
The document creating the power must be in a particular format and must include the following:
- A statement by a doctor verifying that in his/her 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 you that you understood the effect of creating the power
- A statement from a solicitor that he/she is 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
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?
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
- People convicted of offences involving fraud or dishonesty
- 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
The EPA can only come into force when it has been registered. However, once an application to register the EPA has been made, the attorney may take action under the EPA's powers to maintain you and prevent loss to your estate. The attorney may also take action to 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 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
Scope of authority of an enduring power of attorney
The EPA may 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 - 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 he/she reasonably believes that what he/she decides 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.
Revocation of an enduring power of attorney
The donor can revoke an EPA at any time before an application is made to register it. Once the EPA has been registered you cannot revoke it even if you are, for the time being, mentally capable. To revoke it, you would have to apply to the court and the court approve the revocation.
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 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