An Enduring Power of Attorney is a legal mechanism by which a person (known as a ‘the Donor’) allows another specifically nominated person (known as ‘the Attorney’) take actions on their behalf in circumstances where the Donor becomes incapacitated. Unlike a General Power of Attorney, an Enduring Power of Attorney only comes into effect once the Donor becomes mentally incapacitated and only lasts while the Donor is still alive. Obviously an Enduring power of Attorney can only be made, while the Donor has full mental capacity.
An Enduring Power of Attorney allows the attorney the ability to deal with the property, business and financial affairs of the Donor. It also allows the Attorney to take ‘personal care’ decisions on behalf on the Donor in circumstances where he/she has become mental incapacitated. These decisions ordinarily include where the Donor will reside, how they will be cared for, who they should see or not see and what training and rehabilitation they should get. However it is open to the donor to exclude any of these powers, when they are having the Enduring Power of Attorney drafted.
Due to the extensive and far reaching powers an Enduring Power of Attorney bestows on the Attorney, it is subject to various controls and safeguards which protect the Donor from any potential abuse. An Enduring power of Attorney can only be set up where a solicitor is satisfied that it is not being set up due to any fraud or undue pressure. A Doctor is also required to certify that the Donor has sufficient mental capacity to understand the implications of the making of an Enduring Power of Attorney. An Enduring Power of Attorney will also not come into effect until the original document has been registered in the office of the High Court and Courts maintain a supervisory role in the implementations of its powers.
So why should one make an Enduring Power of Attorney? Firstly, it should be seen as an insurance policy, where should you lose your mental capacity, your affairs will be looked after by an appointed friend or relative you can trust. Secondly, in circumstance where you become mental incapacitated, it prevents the need for you to be made a Ward of Court. Being made a Ward of Court is a costly procedure, wherein the High Court decides on your mental capacity and appoints a committee to look after and control your affairs. An Enduring Power of Attorney takes the power out of the hands of the Court and allows you to decide who will look after your affairs should the need arise.
For information on Enduring Powers of Attorney or indeed any aspect of law regarding Wills or Probate, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.
This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other of wills or Probate Law, you should consult with a solicitor who specialises in Wills and Probate. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.