Enduring Power of Attorney
Making an Enduring Power of Attorney with Madden Law
What is an Enduring Power of Attorney?
A power of Attorney document that specifically intends to be effective during any subsequent incapacity that complies with the requirements of the legalisation. “Mental incapacity”, means incapacity by reason of a mental condition to manage and administer his or her own property and affairs.
Why is it made?
Often when a person is expecting to get a diagnosis of mental incapacity, they wish to put this in place to allow family member to have authority over their affairs. it is often helpful to have it in place to allow the Attorney to have authority to apply for the Fair Deal scheme if the person who needs the fair Deal Scheme has lost capacity.
An Enduring Power of Attorney allows a person to appoint one or more people to have authority over their affairs,during their lifetime, in the event that they lose capacity to manage their affairs. It only becomes effective once the EPOA is registered in the Wards of Court Office. The scope of the power can be limited to specific matter .
Two notice parties must be set out in the EPOA. They will be notified when the EPOA is created and when the registration process begins. They have an opportunity to object to the registration at that stage. There are requirements about who the notice parties must be, depending on the civil status of the person creating the EPOA.
The Attorneys must be present with the person making the EPOA, at the time it is signed. The Notice Parties do not need to be present when the EPOA is being signed. An Attorney cannot be a Notice Party .
The person making it must also attend a medical professional and get a form completed. This form will confirm that that the person has capacity to sign the EPOA. This will form part of the EPOA. The solicitor creating the EPOA will also sign a statement confirming the person understands the document that they are signing.
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Useful Video for understanding an Enduring Power of Attorney
Glossary of terms used
The person who made the Enduring Power of Attorney
Enduring Power of Attorney
Frequently Asked Questions about Enduring Power of Attorney
Yes, but only by the person who created the document. It must be stated in the document that a named person can be substituted. An Attorney may not make the substitute.
Yes.If specific provision to that effect is made in the instrument, dispose of the property of the donor by way of gift to the following extent but no further, by making—
a) gifts of a seasonal nature or at a time, or on an anniversary, of a birth or marriage, to persons (including the attorney) who are related to or connected with the donor, and
(b) gifts to any charity to which the donor made or might be expected to make gifts
Yes. An attorney under an enduring power, may act under the power for the attorney’s benefit or that of other persons to the following extent but no further, the attorney—
(a) if the donor might be expected to provide for his or her or that person’s needs respectively; and
(b) may do whatever the donor might be expected to do to meet those needs.
When a notice party has objected to the registration with 5 weeks of receiving it.
When there is no one to give a Notice of Intention to register it.
When the court has a reason to believe that appropriate enquiries might bring to light evidence on which the court could be satisfied, that one of the grounds of objection was established.
Then the court shall neither grant nor refuse the application until it has made appropriate enquiries with the circumstances.
After the registration is completed, the Enduring Power of Attorney cannot be revoked by the person who made it until the court confirms the revocation. The Attorney cannot step down without a valid except on notice to the person and with the consent of the court. The scope of the authority conferred by the Enduring Power of Attorney cannot be extended after registration. On registration of an enduring power, the Registrar of Wards of Court shall supply an attested copy of the enduring power to the donor and any persons who were given notice. Members of the public may inspect the register free of charge during normal office hours.
It applies for so long as the instrument is registered whether or not the donor is for the time being mentally capable
A general power to have authority over all the persons property and affairs to be given. A reduced and specific limited power may be given with conditions and restrictions. An Enduring Power of Attorney may give the Attorney authority to make personal care decisions on behalf of the person. This decision must be made by the Attorney, in the interest of the person who is the subject of the Enduring Power of Attorney. A general power gives the Attorney power to do anything that the person could otherwise lawfully do. An attorney cannot be given the right to substitute or appoint a new attorney.
“personal care decision”, means any one or more of the following matters:
(a) where the person should live,
(b) with whom the person should live,
(c) whom the person should see and not see,
(d) what training or rehabilitation the person should get,
(e) the person ‘s diet and dress,
(f) inspection of the person ‘s personal papers,
The court shall neither register the application nor refuse the application until it has made or caused to be made such enquiries (if any) as it thinks appropriate in the circumstances of the case.
Where the attorney has made an application for registration of the instrument then, until the application has been determined, the attorney may take action under the power—
(a) to maintain the donor or prevent loss to the donor’s estate,
(b) to maintain the attorney or other persons in so far as that is permitted under registration, or
(c) to make a personal care decision which cannot reasonably be deferred until the application has been determined.
The court may also take action, when it considers it necessary before an Enduring Power of Attorney is registered to exercise any power under the Power of Attorney.
Who cannot be an Attorney?
An individual under 18 years a person has been adjudicated bankrupt or convicted of an offence involving fraud or dishonesty
Disqualified as a company director.
a trust corporation
The owner of a nursing which the donor resides, or a person residing with or an employee or agent of the owner, unless the attorney is a spouse, parent, child, or sibling of the donor. owner” includes a person managing a nursing home or a director (including a shadow director within the meaning of section 27 of the Companies Act, 1990 ) of, or a shareholder in, a company that owns or manages such a home
It is often referred to as a “living Will”. However, it only becomes activated after it is registered, when a person has lost capacity to manage their own affairs. It ceases to have effect on death and then a Will takes effect. It appoints an Attorney, who has control of assets and has wide-ranging powers specified in the document.
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Registration of an Enduring Power of Attorney.
If the attorney under an enduring power has reason to believe that the person is or is becoming mentally incapable, the attorney shall, as soon as practicable, make an application to the court for the registration of the instrument creating the power.
The Wards of the Court Office.
Firstly, the Attorney must get a certificate to the effect that the donor is, or is becoming, incapable by reason of a mental condition of managing and administering his or her own property and affairs and purporting to be signed by a registered medical practitioner.
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Sending Notices for the registration of an Enduring Power of Attorney.
If the Two notice parties are dead or mentally incapable or their whereabouts cannot be reasonably ascertained the following classes are entitled to receive notice instead:
(a) the donor’s husband or wife;
(b) the donor’s children;
(c) the donor’s parents;
(d) the donor’s brothers and sisters, whether of the whole or half blood;
(e) the widow or widower of a child of the donor;
(f) the donor’s grandchildren;
(g) the children of the donor’s brothers and sisters of the whole blood;
(h) the children of the donor’s brothers and sisters of the half blood.
However, a person is not entitled to receive notice under this paragraph if the name or address of that person is not known to and cannot be reasonably ascertained by the attorney.This notice must state that the attorney proposes to make an application to the court for the registration of the instrument creating the enduring power in question. It must also inform the person to whom it is given that that person may object to the proposed a registration by notice in writing to the Registrar of Wards of Court before the expiry of the period of five weeks beginning with the day on which the notice was given. The notice must also specify as the grounds on which an objection to registration may be made.If the EPOA appoints two attorney’s but only one is applying for registration, notice must be sent to the other attorney.
Before making an application for registration the attorney shall give notice of intention to do so to the donor and the to notice parties. This notice must state that the attorney proposes to make an application to the court for the registration of the instrument creating the enduring power in question and shall inform the donor that, whilst the instrument remains registered, any revocation of the power by the donor will be ineffective unless and until the revocation is confirmed by the court.
Before making an application for registration an attorney under a joint and several power shall give notice of intention to do so to any other attorney under the power who is not joining in making the application.
Notice’s must be sent by registered post to the usual or last known place of residence of the person to whom it is to be given it shall be regarded as given on the day on which it was posted. Therefore, it is important to keep any original post document