Ask a solicitor: Setting up an Enduring Power of Attorney

We have recently done our Wills and were thinking about putting a Power of Attorney in place. Do you think that this is necessary? Also, would we have to appoint our sons as Attorneys or could we appoint someone else? As our sons live so far away, I’m not sure that it would be practical for them to make decisions for us and that it may be easier for someone in Ireland to be our Attorney.

Dear Reader, 

An Enduring Power of Attorney (EPA) is a legal device that can be set up by a person (the donor) to allow another person (an attorney), to look after their financial or personal affairs, in the event that they have lost capacity to make decisions themselves, either through illness or an accident.

There can be more than one Attorney appointed and the donor can give a general power to the attorney(s) to deal with all their property and financial affairs and all their personal welfare decisions or they can limit the authority to certain decisions. The Attorney can be anyone you chose and does not need to be a family member. However, the Attorney must not be under the age of 18, have been convicted of an offence against you, have been declared bankrupt or have convictions for fraud offences etc.

Applications are now made and registered with the Decision Support Service.

The document creating the EPA must be in a particular format and must include the following:

• A statement from the donor confirming that they understood the effect of creating the power 

• A statement by a doctor or healthcare professional verifying that in their opinion the donor had the capacity at the time that the document was executed to understand the effect of creating the power 

• A statement from a solicitor or barrister that they are satisfied that the donor understood the effect of creating the power of attorney and that they were not acting under undue influence from others 

• A statement by the chosen attorney or attorneys that they understand their obligations and agree to be an attorney The making of the EPA must be witnessed by two people. You will also need to notify your wife and your sons ( if you choose for them not to be your Attorneys) that you are setting up the EPA.

Once approved by the Decision Support Services, EPAs are simply kept on file, until such time as a donor loses capacity. If/when this happens evidence from two doctors or healthcare professionals will be needed to confirm that the donor doesn’t have capacity.

The Decision Support Service monitors EPAs. They also keep a register of EPAs.

If the attorney informs the Decision Support Service that the donor has lost their capacity, they must also submit a list of the donors assets. They must keep a record of moneys paid to the attorney(s) and send this to the Decision Support Service every year. This is a very important safeguard so that the power is not abused.

It is a very good idea to get an EPA set up. If you lose capacity to make decisions for yourself and you don’t have an EPA prepared, then your family may need to make an application to become a Decision Making Representative in the Circuit Court. This can take some time and until such Orders are granted your family will not be able to make decisions on your behalf. This would be more costly for you and therefore it would be better to have the EPAs set up now so that they are ready to come into force if needed in the future.