What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document which allows you to choose to appoint a specific individual “often a close family member” to look after both you and your financial affairs in the event that you lose your mental capacity. It is a document like a Will that doesn’t come into effect until a medical person actually certifies that you don’t have mental capacity to make decisions. Therefore, just because you write one doesn’t mean it ever comes into effect. It only takes effect when it’s registered in the Enduring Power of Attorney Office/Wards of Court Office and that office has specific criteria that must be satisfied before they actually create the Enduring Power of Attorney. So, there are a lot of safeguards in place to protect the individual before an Enduring Power of Attorney is registered in the Wards of Court office.
What do I need to create an Enduring Power of Attorney?
Because an Enduring Power of Attorney involves the transfer of a significant number of powers from you to another person there are a number of safeguards put in place around the creation of it to ensure that it is not abused. The form is a little bit complex but we will talk you through each step of it and it requires the involvement of both your solicitor and your doctor. You must have mental capacity and be mentally able to create and fill out the form when you want to start this process and your doctor must confirm on the form that you have the mental capacity when you sign the document. Furthermore, your solicitor must give a statement stating that they are satisfied that you understood what was involved in creating the document. By creating the document this does not mean that it immediately comes into effect. It only comes into effect if and when you lose your mental capacity.
What other steps are involved in creating an Enduring Power of Attorney?
When you fill out the legal document creating the Enduring Power of Attorney two people must be notified that you are creating this document and neither of those people can be the person you are appointing as your Attorney. One of those notice parties must be your spouse or your civil partner if you are living with them and if you this doesn’t apply then one of the notice parties must be your child.
Who should I appoint as my Attorney?
You should appoint someone as your Attorney who you can trust to manage your general affairs and your financial affairs if you become mentally incapable of doing it yourself.
What is the next step in actually appointing an Enduring Power of Attorney?
Call our office and we will send you our general checklist which we ask that you fill out before coming to the initial consultation. However, we are also quite happy to go through this with you in the office if that is easier for you. We will then have initial consultation with you during which we fill out the document with you or this may take two consultations depending on each individual’s circumstances. After that we will arrange to forward the document to all of the relevant parties as required and once it’s all filled out and completed, we will send you a final signed copy for your own records. The original of the document will be kept in our safe.
What happens if I don’t create an Enduring Power of Attorney and I become mentally incapable of making decisions?
If that happens then it would be very difficult for you to buy or sell a property. It may be difficult for your next of kin or your relatives to access your bank accounts or use your assets to assist you. If there is no Enduring Power of Attorney in place and you have reduced capacity to make decisions (this is also the case even when you own property and assets jointly with your husband, wife or partner) who has full capacity then your relatives or next of kin may have to apply to the Court for assistance under for example the following systems-
- a) Application to appoint a Care Representative (a person appointed by the Circuit Court). or
- b) Application to make a person a Ward of Court
These can be costly Court Applications and these applications could be avoided if a person had an Enduring Power of Attorney in place.
The contents of these pages are provided as an information guide only. While every effort is made in preparing material for publication no responsibility is accepted by or on behalf of McCormack Solicitors for any errors, omissions or misleading statements on these pages or any site to which these pages connect.