A “power of attorney” means an instrument signed by or by direction of a person (the donor), or a provision contained in such an instrument, giving the donee the power to act on behalf of the donor in accordance with the terms of the instrument (s.2, Powers of Attorney Act 1996). There are two types of Power of Attorney allowed under Irish law:
• A Power of Attorney which gives either a specific or a general power and ceases as soon as the Donor of the Power of Attorney becomes mentally incapacitated. A Power of Attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do). For example, it may allow the Attorney to take a wide range of actions on the donor’s behalf in relation to property, business, and financial affairs. He/she may make payments from the specified accounts, make appropriate provision for any specified person’s needs, and make appropriate gifts to the donor’s relations or friends. A Power of Attorney of this type can be created when signed by the donor either personally or at the donor’s direction and in the presence of a witness.
• An Enduring Power of Attorney (EPA) which takes effect on the incapacity of the donor. The procedure for creating an EPA is much more complex.
(a) Enduring Powers of Attorney (EPAs)
The EPA only takes effect on the incapacity of the person making it (“the Donor”). Under s.5 of the Powers of Attorney Act 1996, a power of attorney is an enduring power within the meaning of this Act if the instrument creating the power contains a statement by the donor to the effect that the donor intends the power to be effective during any subsequent mental incapacity of the donor and complies with the provisions of this section and regulations made thereunder. “Mental incapacity”, in relation to an individual, means incapacity by reason of a mental condition to manage and administer his or her own property and affairs.
An EPA can be general or specific, i.e. an EPA may confer general authority on the attorney to act on the donor’s behalf in relation to all or a specified part of the property and affairs of the donor or may confer on the attorney authority to do specified things on the donor’s behalf and the authority may, in either case, be conferred subject to conditions and restrictions (s.6(1), Act of 1996).
An EPA also allows the attorney to make personal care decisions on behalf of the Donor if he/she is no longer mentally capable of making decisions himself/herself. “Personal care decisions” are defined to include decisions on one or more of the following matters: where the donor should live; with whom the donor should live; whom the donor should see and not see; what training or rehabilitation the donor should get; the donor’s diet and dress; inspection of the donor’s personal papers; housing, social welfare and other benefits for the donor. Restrictions can be placed on the attorney’s powers. It is of fundamental importance to note that the concept of “personal care decisions” does not include healthcare decisions (although the border line between personal care decisions and healthcare decisions is not always clear). An EPA cannot validly confer power upon the attorney to make healthcare decisions on behalf of a mentally incapacitated person.
(b) Appointment of attorney
The donor can appoint anyone he/ she wishes to be the attorney including a spouse or family member, friend etc. An EPA may be granted to individuals or trust corporations but may not be granted to the following categories of person:
• people under the age of 18
• people convicted of offences involving fraud or dishonesty
• people disqualified under the Companies Acts
• an individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, child or sibling.
(c) Format of EPA
The document creating the EPA must be in the format prescribed by the Act of 1996 and must include the following:
• a statement by a doctor verifying that in his/her opinion the donor had the mental capacity at the time that the document was executed to understand the effect of creating the power
• a statement from the donor that the donor understood the effect of creating the power
• a statement from a solicitor that he/she is satisfied that the donor understood the effect of creating the power of attorney
• a statement from a solicitor that the donor were not acting under undue influence.
(f). Requirement to register the EPA
Where an individual creates an EPA, the EPA shall not come into force until it has been registered under s.10 of the Act of 1996 and the power shall not be revoked by the donor’s subsequent mental incapacity. Where the donee of the power of attorney (i.e. the attorney) has made an application for registration of the EPA, the attorney may pending the determination of the application take action under the EPA to maintain the donor or prevent loss to the donor’s estate; to maintain the attorney or other persons to the extent permitted by s.6(4) of the Act of 1996; and to make a personal care decision which cannot reasonably be deferred until the application has been determined.
If the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable, the attorney shall, as soon as practicable, make an application to the court for the registration of the instrument creating the power (s.9(1), Act of 1996). Before making the application, the attorney shall comply with the provisions as to notice set out in the First Schedule of the Act of 1996, i.e. the attorney shall notify the following persons of the intention to make the application: the donor, the family members of the donor specified in the First Schedule of the 1996 Act i.e. spouse, children, parents, brothers and sisters, grandchildren and the Registrar of Wards of Court of the High Court. A pre-requisite to an application for registration of an EPA is proof that the donor is or is becoming mentally incapable.
Registration: On an application for registration being made in compliance with section 9 of the Act of 1996 the Registrar of Wards of Court shall, unless subsection (2) applies, register the instrument to which the application relates (s.10(1), Act of 1996). If, in the case of an application for registration a valid notice of objection has been received from a notice party, it appears from the application that no –one has been put on notice of the application or there is reason to believe that appropriate enquiries might bring to light evidence on which the court could be satisfied that one of the grounds of objection to registration of the EPA has been established, the court shall neither grant nor refuse the application until it has made or caused to be made such enquiries (if any) as it thinks appropriate in the circumstances of the case.
(g). Grounds of objection to registration of an EPA
These are specified in s.10(3) of the Act of 1996 and are:
• that the power purported to have been created by the instrument was not valid;
• that the power created by the instrument is no longer a valid and subsisting power;
• that the donor is not or is not becoming mentally incapable;
• that, having regard to all the circumstances, the attorney is unsuitable to be the donor’s attorney;
• that fraud or undue pressure was used to induce the donor to create the power.
The court can refuse to register the EPA upon any of these grounds.
Once the EPA has been registered under the Act of 1996, the EPA cannot be revoked unless and until the court confirms the revocation (s.11(1), Act of 1996.
A purchaser of any estate or interest in land is entitled to have any instrument creating a power of attorney which affects title thereto, or a certified copy or attested copy thereof, furnished by the vendor to the purchaser free of expense (s.23).
Before creating an EPA, as a matter of practice it is a good idea to prepare a full inventory of assets so that the Attorney will know the full extent of the donor’s assets should the need arise.