Tipp FM Legal Slot – 12th November 2013
Enduring Power of Attorney (EPA) & Living Wills
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What is an Enduring Power of Attorney (know as an EPA or Living Will)?
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.
If a person looses the ability to deal with his/her money and assets the Enduring 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 very specific such as giving the Attorney a particular task to carry out, e.g. the sale of property or management of bank accounts. Alternatively, the EPA could be very general and entitle the Attorney to do everything that you would do yourself, with your money and property.
This second type of EPA 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. If you want to impose certain restrictions on the Attorney you can do so, for example prohibiting the sale of your house.
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 they must act together – 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.
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?
If you have made a decision to appoint one family member you can specify that others have to be consulted about what would be best for you and what your wishes might have been had you been able to make decisions. You can also select an alternative Attorney in case your first choice is unwilling or unable to act.
What is the procedure for creating an EPA?
The procedure for the creation of an EPA is complex.
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.
Your Solicitor will prepare all of this paperwork and notices and guide you through the process.
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 on the process of revocation of the EPA.
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 and it is only after it is registered that it comes in to effect.
The Attorney will have to produce medical evidence of the Donor’s incapacity and notice of the application to register the EPA.
The EPA must also be served on the person who created the Power and the same two persons who were notified of the creation of the EPA.
The series of notifications and checks involved in the registration makes sure that the system is open and transparent and allows people to object if they are concerned that the Attorney might be acting inappropriately.
Once the EPA is registered the Attorney can lawfully act on the Donor’s behalf. If urgent decisions need to be made e.g. in the area of personal care, the Attorney can make decisions before the EPA is registered and, likewise, if they need to take any action to preserve and protect the Donors assets, they can do so before the EPA is registered.
The Attorney has a duty to keep accounts and produce them to the Wards of Court office, if required. Unless the Donor has specified that s/he is entitled to be paid the Attorney can only claim out of pocket expenses.
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.
Can people outline in an EPA the health care or medical treatment they wish to receive if they become ill?
EPAs are living wills insofar as how a person’s property is dealt with, but the Living Wills Bill makes provisions for how a person’s healthcare is dealt with.
In June 2012 the Advanced Healthcare Decisions Bill was passed to the second stage in the Dáil.
The “Living Wills” Bill, if enacted, would give people the freedom to determine, in advance, the treatment they wish to receive if they become terminally ill or incapacitated and unable to communicate.
Living wills, also known as advanced healthcare directives, take the control of what happens at the end of life “out of the hands of medical professionals” and “back to patients”, said Fine Gael TD Dr Liam Twomey, who introduced the Bill in June.
Basically, the Living Wills Bill would allow people to pre-determine the healthcare they wish to receive in the event of, for example, their getting Alzheimer’s, or being in a long-term coma. They could specify that they would not want to receive specific forms of medical treatment.
What this piece of legislation is about is what is described as ‘Living Wills’; where a person can say now what they would like to have done, or not done, for them in the event of them not being able to make that decision.
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 Bill allows us to plan for the unforeseeable and allows patients to keep their medical care in their own hands whatever the circumstances.
