Enduring Power of Attorney (EPA)
What is an EPA (Enduring Power of Attorney)?
If someone becomes incapacitated through disability, illness or a progressive degenerative disease their assets could potentially be frozen. To avoid this situation a person, while in good health, should create an Enduring Power of Attorney (EPA), sometimes known as a “living will”. The Power of Attorney only takes effect when a person becomes mentally incapacitated.
Power of Attorney transfers authority to look after the money and assets to the Attorney, once certain steps are taken. The Donor is not prevented from dealing with his/her money and assets by creating the EPA, this only happens if the Donor becomes mentally incapacitated.
What Powers does the appointed Attorney have?
An Enduring Power of Attorney can be tailored to your needs and can give the Attorney a specific task such as selling property or managing a bank account. Alternatively it can be general, giving the Attorney the power to do anything that you yourself can do with your property or money, but you can restrict these powers by, for example, forbidding the sale of your home. This general type could also enable your Attorney to make “personal care” decisions e.g. where a person lives, who s/he should see and not see, diet and dress.
How do you appoint an Attorney?
You can appoint anyone you wish to act as your Attorney – your spouse, a family member or a friend. You can also appoint more than one person. You can specify that decisions must be made jointly or, alternatively, it can be specified that they act jointly where they can act together, but decisions can also be made by one Attorney. You can also select an alternative Attorney in case your first choice is unwilling or unable to act.
The choice of Attorney is a personal matter but a good deal of thought needs to be given to the nomination. You need to ask yourself is this person suitable for the job? Are they trustworthy and do they have the skills to manage my affairs and make decisions for me?
How do I create an EPA?
You will have to consult your Solicitor and your Doctor.
Your Solicitor will prepare the documentation for you after consultation with you and decide whether a specific or general Power of Attorney is more suited to your needs.
Your Attorney will need to be advised about the role and duties.
Two independent people must be notified that you have created the Power of Attorney.
Can the person who created the EPA change his/her mind?
The EPA can be revoked at any time before it is registered, provided that the person who created the power still has the mental capacity to do so.
If you change your mind about having an EPA or about your choice of Attorney you should consult your Solicitor immediately. Your Solicitor will advise you on the process.
How does the Attorney register the EPA?
The Attorney must apply to the Wards of Court office for registration of the EPA if the Donor becomes mentally incapacitated. The attorney may only act on behalf of the donor after it is registered although if urgent decisions have to be made this can be done before registration.
The EPA must also be served on the person who created the Power and the same two persons who were notified of its creation. This ensures that the system is open and transparent and allows for objections if there are concerns that the Attorney may be acting inappropriately.
An Enduring Power of Attorney is as important as your Will, but many people place more emphasis on the latter. The Enduring Power of Attorney will prevent a situation arising where money and assets become frozen as friends and family members struggle to cope with the stresses and demands of the illness.
None of us know what is around the corner and none of us would like to think of ourselves as being a burden on our families or loved ones. This allows us to plan for the unforeseeable and allows people choose who they want to manage their affairs and how this will be done whatever the circumstances.
For further information contact us at Lynch Solicitors, by email [email protected] or telephone (052) 612 4344.
The material in this article is for general information only and is not legal or professional advice. While every care has been taken, we advise you to seek specific advice from us.
