What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a document that allows someone (an “Attorney”) to act on your behalf, should you become mentally incapable to look after your affairs in the future due to illness, injury, dementia or some other cause. It means that Attorney can take all the legal steps that would be required to act on your behalf in those circumstances. You will generally appoint one or more family members to act as your Attorney on your behalf. We recommend this to all our clients, to protect against their legal affairs being completely tied up if they become very unwell.
Under the EPA, you are recorded as “the Donor”.
When the Enduring Power of Attorney is signed by you and the Attorney/s, then your Doctor / Medical Consultant must certify in writing that at the time you signed the EPA you were capable of understanding its meaning. The process also requires that at least two other parties (generally family members) are notified that you have signed the document. In addition, all your children must be notified. They are described as “Notice Parties”.
Previously
Previously, under the Power of Attorney Act 1996, it was merely necessary for a Donor to execute the EPA and in turn for the appointed Attorneys to also sign the same document. In turn the Solicitor would sign a Certificate that the document had been properly executed. The Donor`s GP would then be requested to sign a Certificate that the Donor had the necessary mental capacity. The EPA document would then be kept in a safe place in the event that it was required in the future, should the Donor become mentally incapacitated. Only at that point, and only in that event, was it necessary in turn to register the EPA with the High Court, Wards of Court Office, in order for the Attorneys to then have power to deal with the Donor`s property and affairs.
All has now changed
This has all now changed since the enactment of the Assisted Decision-Making (Capacity) Act 2015 (the “new Act”).
Under the new Act (enacted only thereafter on the 26th April 2023) the process for completion of an EPA has now become much more complicated. Not only must the EPA be signed by the Donor and the Attorneys and the 2 Notice Parties notified; but the Spouse (where appropriate) and all children must also be notified and in turn the EPA must be registered with the Decision Support Service (DSS) and recognised as properly registered by the DSS before the EPA is legally effective.
For more information on these complications, please refer to the Article in our website titled EXECUTING AN ENDURING POWERS OF ATTORNEY UNDER THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 – IT WAS NEVER GOING TO BE EASY!
While it is possible to complete the EPA documents manually for delivery by post, as explained in the above Article, this process could be very slow. We, at Morgan McManus, have made a decision to advise clients to register through the Online Process, with our assistance.
The Online Process
The process can be summarised as follows:
- The necessity for both Donor and Attorneys to acquire Public Service Card registration and a verified account with MyGovID;
- The Solicitor, on meeting with the Donor, is required to gather in all other necessary information contact details to prepare the draft EPA;
- The Solicitor meets with the Donor to upload that information online to the website of the DSS;
- The Solicitor in turn meets with the Donor and Attorneys to execute the EPA;
- The Solicitor is required to sign the Legal Statement to confirm that the EPA has been properly executed;
- The executed EPA is given to the Donor to attend with their Doctor/Medical Consultant for the Doctor/Medical Consultant to confirm that the Donor had the necessary mental capacity to sign the EPA in the first place;
- On return of the signed Doctor’s Certificate the Solicitor arranges to upload all signed documents to the website of the DSS;
- The Solicitor deals with any enquiries raised by the DSS pending registration of the EPA, and
- In due course the EPA is registered by the DSS and then deemed legally effective.
Not Complete until Registered!
If you don’t undertake the execution of an EPA, then you have no decision or scrutiny as to who will ultimately be responsible for your personal care and property in the event that you do subsequently become mentally incapable of looking after your affairs.
You should not however wait until you are older or until you may have been diagnosed as suffering from an illness which may lead you to be incapable. For instance, what if you were rendered incapable by reason of injuries sustained in a road traffic accident?
Also remember that the EPA is not legally complete until it is registered by the DSS.
The earlier you decide to draw up an EPA, the better.
So, why not contact us about this process today?
For further information, contact Morgan McManus solicitors:
Phone: 003534751011
Email: law@morganmcmanus.ie
Website: morganmcmanus.com
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Key Contacts
Brian Morgan
Solicitor
Enduring Powers of Attorney
Get in touch with our team today to learn more and get started with the process.
Legal advice is available.