What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPOA) is a document, created in compliance with the Powers of Attorney Act 1996, executed by a person (known as the Donor) , appointing Attorney(s) to act on their behalf over their affairs, in the event that the person loses mental capacity.
1. Make an appointment with a solicitor to give instructions.
The person making an EPOA must have capacity to instruct a solicitor to prepare the document. If the person lacks capacity, a solicitor cannot allow a person to execute an EPOA. The test to decide whether a person has capacity, is a legal test but it is supported by medical evidence. Therefore, it is not sufficient for a doctor to confirm that the person has capacity to create the legal document. To have capacity , the person must demonstrate to the solicitor that they understand the effect of creating an EPOA, they understand when the document will take effect and that they can revoke the EPOA, prior to registration.
Primarily, the person will have to instruct the solicitor as follows:
- Who will be appointed as Attorney and substituted Attorney
- If more that one, if they should act jointly or jointly and separately
- Who will be the notice parties – there must be two who must be closely related to the person.
- If there are to be any restrictions imposed on the powers of the Attorney. If no restrictions are imposed, the Attorney will have full power
Madden Law has an instruction form which can be emailed to you in advance, setting our all the required details.
2. Make an appointment with a Doctor.
A section of the Enduring Power of Attorney document requires a doctor to confirm that the person has capacity to create the document. The Powers of Attorney Act 1996 governs EPAOs and it states that the EPOA can be created and the medical certificate can be signed by the doctor within 30 days. However, it is advisable to have the certificate signed on the same day as the execution of the EPOA. This avoids any future challenge to the capacity of the person at registration.
3. Signing the EPOA.
The person attends with their doctor and gets the required documents signed. The solicitor provides this to you. Then, the parties meet their solicitor with the document. The Attorney must be present with the person and the solicitor for the signing of EPOA. The solicitor confirms all of the details with the person and assesses their capacity. The person signs the first part of the EPOA which appoints the Attorney. The solicitor then signs the next part which confirms the person has capacity.
The Attorneys signs the next part to confirm they accept and understand the role. Finally, the person then signs the next two parts which are notices, which will be sent to the notice parties, advising them that the EPOA has been created. The solicitor attends to this part. The original document is stored in the office of the solicitor until it’s registration is required.
4. When does the EPOA come into effect?
The EPOA remains valid but not enforceable until it is registered in the Office of the Wards of Court. This registration occurs only after the person who executed the EPOA has lost capacity to manage their own affairs. The registration process is a thorough process taking approximately 4 months to complete. After completion, a certificate of registration will issue from the Office of the Wards of Court. The Attorney then presents this certificate to validate their appointment.
The two Notice Parties named in the EPOA on creation, will be notified of the intention of the Attorney to register the EPOA. Following the notification, the Notice Parties have the right to object to the registration of the EPOA and this objection is made to the Office of the Wards of Court.
6. Grounds for Objections
- The EPOA was not validly created
- The person has not lost mental capacity
- The Attorney is unsuitable
- That fraud or undue pressure was used to induce the donor to create the EPOA
Recent High Court case of 2016 in which Mr. Justice Peter Kelly refused an objection.
7. What happens if there is a dispute between the Attorney and other family members?
If this occurs, the parties make an application to Court to make a decision about the management or disposal by the Attorney of the property and affairs of the donor.
Following the hearing of the matter, the Court can request accounts to be furnished to it by the Attorney. However, these accounts will not be released to family members but will be used by the Court to make a decision.
8. Revocation of the EPOA
The person has the right to revoke the EPOA any time before registration, once there is sufficient capacity.
The Court has the power to revoke the EPOA on many grounds, including if the document was not validly created, if undue influence was used to create the EPOA and if the Court determines that the Attorney is unsuitable to act in the circumstances.
9. Upcoming Changes
Finally, the 2015 Act* will require the Enduring Power of Attorney to be executed in the presence of the Donor and the Attorneys.
It will require the EPOA to be witnessed by two people who must be present at the same time. This is similar to the execution of a Will.
If the Donor wants to pay the Attorneys, then the amount of payment and the functions to which it relates will have to be set out in the Enduring Power of Attorney.
A certificate shall be required from a medical practitioner and a healthcare professional, confirming that the Donor had capacity to understand the effect of creating an Enduring Power of Attorney.
Currently, there are no reporting obligations on the Attorney, once the EPOA has been registered. The new legislation will require an Attorney to furnish :
1.A schedule of assets and liabilities within 3 months of registration;
2. Projection of income and expenditure for the Donor after registration and then every 12 months also;
3. A statement setting out their assessment of how the donor’s assets and affairs will be managed.
*under the current law. Part 7 of the Assisted Decision-Making (Capacity) Act 2015 , when implemented, will change the components of the EPOA , which are currently governed by the Powers of Attorney Act 1996. It is envisaged that Part 7 of the 2015 Act will be implemented in 2018.