While most of us are aware that making a Will can greatly simplify matters for our family and next of kin at what is conventionally a difficulty time, not all persons are aware of the device sometimes colloquially termed a ‘living will’ and technically termed an ‘Enduring Power of Attorney.’
Unlike a Will, an Enduring Power of Attorney operates while the deponent is alive but unable to manage their own affairs due to incapacity. This can be due to any number of factors such as a serious injury affecting the subject’s cognitive ability, a serious mental impairment such as would render the subject incapable of managing their own affairs, or the onset of senility, dementia or other such all to increasingly common scenario.
This enduring power of attorney much like a Will must be executed by the deponent/donor while they have the mental capacity to deal with their own affairs – the term accorded to same is that the person creating the power of attorney must be of sound deposing mind at the time of execution.
An Enduring power of attorney is a simple document which outlines the powers which are sought to be transferred should the deponent/donor lose the ability to manage their own affairs and the person(s) to whom the power is to be transferred to effectively steps into the shoes of the incapacitated person. An EPA can either be of a general nature or can specially state the powers which are to be transferred on incapacity. These powers can include passing to the nominated person or persons can include the power to take decisions as to the donors’ personal care (although significantly this cannot cover healthcare decisions) and financial affairs. The powers passed much, like a bequest in a Will, can also be limited by conditions.
Unlike a Will an Enduring Power of Attorney is a contingent document which will only become operative if the deponent/ donor loses the ability to manage their own affairs. Importantly, a power of attorney will only become operative in circumstances whereby a medical practitioner declares the subject to no longer have capacity such that they would be capable of managing their own affairs.
Upon activation, the powers conveyed in the Enduring Power of Attorney will then pass to the persons nominated who effectively take the place of the subject as decision maker. Any person over the age of eighteen years can be nominated provided they are not a bankrupt, have never been convicted of a crime of fraud or dishonesty and are not disqualified pursuant to the terms of the Companies Acts. An individual or trust corporation who owns a nursing home in which you live, or an employee or agent of the owner cannot be the nominee under a Power of Attorney unless that person is also your spouse, child or sibling. Conventionally a donor will appoint two persons usually family members as nominees.
What the Enduring Power of Attorney effectively does is give the donor the power to
1. Decide who will take important decisions for them should the need arise
2. Provides certainty and continuity to the donor and to their families in the management of the donor’s affairs.
In general, only one consultation will be required with your solicitors who will draft the Power of Attorney and required declarations based on your instructions. Thereafter you will be required to attend at the solicitor’s office to swear the Power of Attorney. The procedure is significantly less expensive than the alternative wardship application which would be required in the absence of a Power of Attorney should such incapacity arise.
Much like making a Will, person’s of all ages should consider executing an Enduring Power of Attorney as an important document which will provide certainty and security should the need arise.
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