Brian Morgan of Morgan McManus Solicitors Ireland advises on the complications arising where a non-resident wishes to complete an Enduring Power of Attorney in Ireland.
Complications in completing an Enduring Power of Attorney
Things were so simple prior to the enactment of the Assisted Decision-Making (Capacity) Act 2015 (“the Act”) in April 2023!
I have already written a BLOG on the complications which arise even for Irish Citizens wanting to complete an Enduring Power of Attorney since the enactment of the Act. See the Link to that BLOG: HAS THE LAW ON ENDURING POWERS OF ATTORNEY CHANGED? : https://www.morganmcmanus.com/has-the-law-on-enduring-powers-of-attorney-changed/
See also our website at https://www.morganmcmanus.com/mental-capacity/enduring-powers-of-attorney-providing-for-your-future-in-the-event-of-mental-incapacity/
which also links to a more detailed Article.
Enduring Powers of Attorney by non-residents
A question which we are commonly asked by non-residents, who have already completed an Enduring Power of Attorney in their country of origin, is whether that already completed Enduring Power of Attorney will be recognized by the Irish Authorities, should the person who signed that Enduring Power of Attorney (“the Grantor”) subsequently become unfit to deal with their legal affairs.
The Hague Convention
For an Enduring Power of Attorney to be recognised in another country, both countries involved must have ratified the Hague Convention. For example, if an Enduring Power of Attorney is made in Ireland and recognition is sought in England (or visa-versa), both Ireland and England must be parties to the Convention.
At present, the Hague Convention has been ratified in Ireland. However, with the exception of Scotland, the rest of the United Kingdom has not ratified the Convention.
For further information on the Hague Convention, please see the following link: Hague Convention | Decision Support Service
Further Complications for the non-resident!
A person who resides outside Ireland, but who owns property or holds assets in Ireland, may make an Enduring Power of Attorney. However, at the Application stage, a number of documents must be completed, signed, and properly witnessed. Please note that all documents must be completed, signed, and witnessed in person by physical attendance.
Two of these documents have specific professional requirements:
- the Statement of Capacity must be completed by a medical practitioner or healthcare professional who is registered in Ireland; and
- the Legal Practitioner Statement must be completed by a solicitor or barrister who is registered in Ireland.
This already adds another complicated layer for non-residents, who may not even have an Irish PPS number!
Requirement for Irish Public Services Card and verified account with MyGovID
As if matters were not complicated enough for the non-resident, you, the Grantor, and your Attorneys need an Irish Public Services Card (which you must arrange with the Department of Social protection in Ireland and a verified account with MyGovID, which is the Government online portal. An account is verified when its link with your telephone number is completed.
Difficulties going forward for Non-Irish Residents
Where residents of Northern Ireland, Wales or England, which are countries which have not ratified the Hague Convention, are concerned, they have been put in a most difficult position, where Enduring Powers of Attorney already signed by them in their country of origin, will not be recognised by the Irish Authorities.
This leads to a necessity for those residents to register a separate Enduring Power of Attorney in Ireland, but with all the difficulties outlined above. Obviously, the easiest way for all of this to be rectified would be the recognition of the Hague Convention by those countries detailed above, but will that ever happen!
For further information on Enduring Powers of Attorney, you should contact:
Brian Morgan
Morgan McManus Solicitors
Web: www.morganmcmanus.com
Email: bmorgan@morganmcmanus.ie
Ph. No.: 00353 47 51011