The purpose of an Enduring Power of Attorney (EPA), is to appoint a person (an Attorney), to look after your financial and/or personal affairs, in the event that you no longer have the mental capacity to do so yourself.
An Enduring Power of Attorney is created by a person (the Donor), while they have mental capacity. The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations (S.I. 196/1996). The power only comes into effect when the Donor becomes mentally incapable of managing their affairs, at which time, the Attorney/s must apply for registration of the EPA.
There is no requirement for the Attorney to be a relative of the Donor. The Donor can appoint anyone to act and may appoint more than one Attorney if they wish.
Who cannot act as Attorney?
- People under the age of 18
- Bankrupts
- People convicted of fraud
- People disqualified under the Companies Act
- An individual or trust corporation who own a Nursing Home in which the Donor is residing
Only 6% of Irish adults have an Enduring Power of Attorney (EPA) in place, a poll in 2022 revealed. This which leaves people at greater risk of abuse and exploitation if they lack capacity to make decisions due to illness, disability or frailty.
Safeguarding Ireland, which commissioned the poll by RED C, called for a major increase in the number of adults with an EPA in order to safeguard and reduce adult abuse. It launched a nationwide public awareness campaign last year to encourage more adults to plan ahead, talk with their solicitor and make an EPA.
Within the poll, 36% said they never thought about it, 27% had no current concerns about their capacity and did not believe they needed it and 12% thought they were too young to need one.
Safeguarding Ireland chairperson Patricia Rickard-Clarke said the level of take up of EPAs is closer to 30-40% in other European countries and she encouraged much greater take up in Ireland. “An EPA gives legal clarity. It makes people’s wishes and preferences known and they can be followed. It reduces confusion, tension and problems in families including financial abuse and misuse of property and personal welfare.
“The vast majority of people are honest, but unfortunately international research has shown that up to 10% of people are dishonest in their use of another person’s money or property.
“To make an EPA people must make an appointment with a solicitor and appoint their most trusted person with authority to make future decisions about their finances, property and personal welfare if needed.”
The Enduring Power of Attorney only comes into effect when it has been registered. The Attorney/s must apply to the Registrar of Wards of Court for registration, once medical evidence has been obtained, confirming that the Donor is, or is becoming, mentally incapable of managing his/her affairs. The solicitor who drafted the Enduring Power of Attorney usually takes responsibility for registering the document.
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.
