A power of attorney permits an individual (the ‘donee’) to act on behalf of another (the ‘donor’) in prescribed areas. Typically a power of attorney may be created to enable the donor to have his/her business affairs managed while he/she is out of the country. The power however becomes ineffective should the ‘donor’ become mentally incapable.
An Enduring Power of Attorney (‘EPA’) is a form of power of attorney which continues to have legal effect notwithstanding the ‘donor’ becoming mentally incapable. The benefits are that the donor has the opportunity to discuss and decide with his/her family in advance who will make the personal care decisions should the donor not be able to do so.
In distinguishing between the general power of attorney and the Enduring Power of Attorney one should understand that the General Power of Attorney becomes ineffective should the donor become mentally incapable, whereas the Enduring Power of Attorney only becomes effective should the donor become mentally incapable.
Discussions about creation of an Enduring Power of Attorney often give rise to a level of anxiety with donors. However it is in effect an opportunity for a person to plan ahead for a period of mental incapacity – by choosing who should act on their behalf should such circumstances arise. The alternative, in the absence of such an EPA, is to become a Ward of Court – in which case the Courts will appoint relevant person(s) to manage the affairs of the mentally incapacitated individual.
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.
Executing the Enduring Power of Attorney requires the involvement of a solicitor and a doctor. The document must include specific statements from the donor, the doctor and the solicitor – as detailed in the Act.