Enduring Powers of Attorney – Planning Ahead

An Enduring Power of Attorney (“EPA”) is a legal document that allows you to appoint individuals, known as Attorneys, to make certain decisions and manage your affairs for you, if you lose your mental capacity in the future.

An EPA affords you the opportunity plan and control who makes decisions for you and what decisions they can make on your behalf. If you lose your mental capacity and do not have an EPA in place, difficulties can arise in relation to the management of your affairs in terms of accessing bank accounts and obtaining information.

You can appoint one or more individuals to act as your Attorney.  They do not have to be family members however if your spouse is not chosen as an Attorney, they must be a Notice Party.

There are specific rules in relation to persons who cannot be appointed as an Attorney i.e. a person who has been convicted of an offence against you or who has been convicted of offences involving fraud or dishonesty, bankrupts or those involved in personal insolvency arrangements, to name but a few.

Creating an EPA also allows you to specify whether your Attorneys can act jointly (together) or jointly and severally (together or apart) in relation to the decisions made on your behalf.

You can provide your Attorneys with general authority to act on your behalf in respect of your property, affairs and personal welfare decisions or limit the scope of their authority to specific matters.

Property and Affairs decisions include decisions in relation to the sale of your property, the purchase of a property, and the execution of contracts on your behalf.

Personal Welfare decisions include decisions in relation to where you should live, social activities and healthcare.

EPAs do not however govern decisions in relation to medical treatment, these are dealt with under Advance Healthcare Directives.

The Assisted Decision-Making Capacity Act 2015 changed the law in relation to EPAs from the 26^th April 2023.  It created the Decision Support Service (“DSS”) which is the service that now manages the creation of and notification of Enduring Powers of Attorney.  Their website www.decisionsupportservice.ie provides helpful information in relation to EPAs generally.

Individuals can now create EPAs, online through the My DSS Portal. However, before undertaking this course of action, you should ensure that you have a Solicitor/Barrister willing to sign the required Legal Statement.  This Statement provides that having interviewed you, the Legal advisor is satisfied that you understand the implications of creating an EPA, you are aware that the EPA can be varied or revoked up and until capacity is lost and that the Legal advisor has no reason to believe that you are executing the EPA under fraud, coercion or undue pressure.  The latter is where the difficulty has arisen in practice as it is difficult for a Legal advisor to know whether you have been unduly influenced unless they are involved in the creation of the EPA from the beginning.  It is for this reason that many legal advisors are no longer providing an EPA service to their clients.

We have been assisting our clients in creating EPAs under this new system since its commencement and have a wealth of knowledge in the creation of EPAs under the current framework. The process with us involves the following: –

1. An Authority and ID Verification Form is completed and submitted to the DSS.
2. A DSS Account is set up.
3. You attend at our office and complete the Questionnaire online with us and confirm the contact details of your Attorneys, Notice Parties and GP.
4. The EPA documents are created by the DSS and sent out by us to you for review.
5. You attend at the office for a second meeting together with your Attorneys to execute the EPA and your Attorneys will also sign their consent to act.
6. We complete the Legal Statement on your behalf.
7. We send the EPA to your doctor for them to sign the Statement of Capacity
8. Notice of the Enduring Power of Attorney is sent out to your Notice Parties. Several people must be notified that you have created an EPA, these include your spouse, civil partner or cohabitant (if they are not acting as your Attorney, all children over the age of 18 years and any other person appointed to assist you under the 2015 Act.
9. Registration The EPA is then sent to the DSS within 3 months of execution for registration of its existence.

It is only if you lose your mental capacity in the future and the EPA is successfully notified to the Decision Support Service that the EPA garners any power.

If you wish to create an Enduring Power of Attorney or would like further information on the matter, please contact Sarah Flynn on sflynn@reddycharlton.ie