By: Maura Barron | Posted on: 20 Feb 2019

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) is a useful tool which allows a person (donor) to nominate one or more persons (attorneys) to take care of their affairs, should the donor find themselves in a situation where they are no longer capable of managing their own affairs. A situation such as this may occur when a person becomes incapacitated due to illness such as Alzheimer’s or other degenerative conditions.

The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996.

The EPA will allow the chosen attorneys to make decisions on behalf of the donor, such decisions may include deciding where the donor will live and what rehabilitation or care he/she should receive. Putting an EPA in place is particularly important in circumstances where one is caring for an elderly or disabled relative.

The High Court has a supervisory role in respect of the EPA ensuring specific safeguards are in place and thereby reserving the integrity of the process. There is protection against fraud and undue pressure, this ensures the wishes of the donor are respected.

What happens if there is no EPA in place?

If there is no EPA in place and a person is unable to manage their own affairs, all of their assets and property may be frozen. Unless the donor’s assets are in joint ownership with another person and that person has the authority to use those assets, the donor’s family may be unable to gain access to the assets, which may be needed to assist with the care of the donor.

The donor’s family may then need to apply to make the donor a Ward of Court. This will give the court the power to make decisions on the donor’s behalf. A judge will appoint a committee usually members of the donor’s family, to attend to his/her affairs.

The process of making a person a Ward of Court is also more expensive than creating an EPA and the donor will have no control over which family member(s) are appointed, this highlights the importance of planning ahead and ensuring the EPA is in place early on.

For any further enquiries on EPAs, please make enquiries with our key contacts below.

Key Contacts: Anne O’Driscoll and Maura Barron.

Disclaimer: This document is for information purposes only and does not represent legal advice. If you have any queries in relation to the above matters, please refer to the contacts above or alternatively to your usual contact in P.J. O’Driscoll & Sons LLP.

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