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Creating & Modifying an Enduring Power of Attorney

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Elderly couple, representing enduring power of attorney

For anyone concerned about what happens to their financial or personal affairs in the event of losing capacity, the creation of an enduring power of attorney (EPA) is a key consideration. In this short guide we explain what EPAs are, how they are created and modified.

What is an enduring power of attorney?

An EPA is a legal arrangement where a person, known as the donor, appoints another individual, referred to as the attorney, to manage their financial or personal affairs should they lose the capacity to do so. This setup is part of forward planning for situations where one might become incapacitated, allowing for continued management of their affairs regardless of their mental state. However, it’s important to note that EPAs do not extend to decisions about medical treatments; these require an Advance Healthcare Directive instead.

New laws came into effect in Ireland on April 26, 2023, requiring all EPAs established on or after this date to be registered with the Decision Support Service, upon the donor’s loss of decision-making capacity. Only with this services’ acceptance of the donor’s incapacity does the EPA become active. EPAs prior to this date had to be registered with the Office of the Ward of Courts.

What is the Assisted Decision-Making (Capacity) Act, 2015?

It’s important legislation that was introduced to support individuals who may have difficulty making decisions due to capacity issues. Enacted to replace the outdated Ward of Court system, the act provides a modern framework for decision-making assistance, including the establishment of the new Decision Support Service (DSS). This act ensures that decisions about personal welfare, property, and treatment are made with respect to the individual’s will and preferences, promoting autonomy and dignity for those with varying levels of decision-making capabilities.

What does the Act say about enduring powers of attorney?

It stipulates that an EPA can be established to allow a designated attorney to manage the financial and personal affairs of the donor if they lose capacity. The act requires that the EPA be registered with the DSS before it becomes effective, and this occurs only when the donor is confirmed to lack decision-making capacity. This reform aims to enhance safeguards and ensure that the interests of the donor are prioritised and protected.

What does an EPA enable me to do?   

An EPA allows you to appoint an attorney to manage your affairs. This authority can be broad, enabling the attorney to perform any lawful actions on your behalf, or it can be limited to specific tasks. These tasks may include managing your property and finances—such as selling or buying property, managing businesses, fulfilling contracts, settling debts, and handling tax or social welfare matters. Additionally, the attorney can make certain personal welfare decisions, like choosing your accommodation, managing your involvement in education or social activities, and overseeing your participation in social services.

What is the process for creating an enduring power of attorney?

Creating an EPA involves significant legal measures to protect you, given that it transfers considerable authority to someone else. The process requires involvement from a solicitor and a healthcare professional, ensuring that you fully understand and agree to the terms without any undue influence. The EPA becomes valid only after completing specific legal procedures and must be formatted to include affirmations from you about your understanding of the EPA, a healthcare professional’s confirmation of your capacity, and a legal professional’s assurance of your informed consent. Additionally, the appointed attorney must acknowledge their responsibilities and consent to act as such. The document must also be witnessed by two people.

Certain individuals are ineligible to be appointed as attorneys, including minors, anyone convicted of crimes against you or your family, bankrupt individuals, and those with certain other legal disqualifications. Specific restrictions also apply to owners or employees of a nursing home where you reside, unless they are close relatives. These exclusions ensure that the power granted by the EPA is exercised appropriately and without conflicts of interest.

Is it possible to end an enduring power of attorney?

Yes. Revocation or variation of an EPA established on or after April 26, 2023, requires notifying the DSS. The request must include personal and legal attestations of understanding and absence of undue influence, with an additional statement from the attorney if the EPA is being varied. For EPAs before this date, revocation can only occur through the High Court.

Additionally, fee waivers for registering a new EPA under the 2015 Act may be requested if a previous EPA under the 1996 Act has been revoked, requiring confirmation from a solicitor. If a donor regains decision-making capacity, the EPA can be rescinded through the DSS with appropriate medical and legal documentation. EPAs automatically cease upon the donor’s death but can also end if the attorney becomes disqualified due to changes in marital status, legal convictions, or if a barring order is issued against them. In cases where capacity is lost and later regained, or where an attorney needs to resign post-registration, legal processes involving the DSS or the courts are required.

How can a family law solicitor assist me?

A solicitor can help you understand the implications and consequences of establishing the EPA. They can also draft the EPA document to meet legal standards and include the necessary statements to confirm capacity and voluntary participation. Additionally, your solicitor can assist in the registration process with the DSS and handle any variations or revocations of the EPA as needed, ensuring all actions comply with current laws and regulations. Should you require advice or assistance with any aspect of creating or modifying an EPA, the family law team at McCarthy + Co will be glad assist you. Contact us using our confidential consultation form to arrange an appointment to speak to a solicitor.

Clíodhna O'Regan

Born and raised in Clonakilty, Clíodhna O’Regan is an Associate Solicitor specialising in conveyancing, with a particular interest in commercial conveyancing. She also specialises in family law. She has been an integral part of McCarthy + Co. for six years since she returned West in January 2017, after gaining experience as a conveyancing and probate solicitor in Cork city.

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