20140707165420

July 2014

enduring powerof attorney (epa)

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endur ing power o f a t to rney (epa)

What is a power of attorney?

A power of attorney is the legaldocument by which a person(the donor) allows anotherperson (the attorney) torepresent the donor or to act inthe donor’s place, either generallyor for specific purposes. It comesto an end if the donor becomesmentally incapacitated or dies.

What is an EPA?

An Enduring Power of Attorney (EPA), on theother hand, is a legal document by which thedonor states that the attorney will in thefuture have power to act on the donor’sbehalf if the donor becomes unable orincapable mentally of looking after his or herinterests. It comes to an end on the death ofthe donor or it can be revoked by the donorduring his/her lifetime.

Important: Both of these Powers transferconsiderable responsibility and control to theappointed person. You should be extremelycareful in how you set them up. You arestrongly advised to seek legal advice,especially when deciding what conditions andrestrictions to apply to the powers you aregiving to your attorney.

The lawgoverning EPAsis the Powers ofAttorney Act1996


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Why is an EPA useful?

l It will allow you to appoint someone ofyour choice to control your affairs shouldyou become mentally incapacitated, forexample through brain damage,Alzheimer’s disease, or other forms ofdementia.

l It will allow you to avoid a Ward of Courtapplication being made for you in thefuture. Here the court gets the power tomake decisions on your behalf, where youhave been proven as an adult to be ofunsound mind. Your property and moneycomes under the control of the court andthe Courts Service will have the duty ofoverseeing these in your best interest.

Who can be an attorney?

You can ask anyone you like to be yourattorney, subject to the list of excludedcategories of people below. Given the powersinvolved, it should be someone you can trust.However, it can also be a professional person.Normally, if you appoint a professional personas attorney, you will have to pay for thatservice.


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You may appoint more than one person to actas your attorney and it is important toappoint two attorneys if possible, in case ofthe death, incapacity or unsuitability of one ofthese attorneys. Attorneys can be appointedto act jointly (together) or severally(independently of each other).

Persons who are not permitted to beattorneys include:

l People under the age of 18 years.

l People who have been declared bankrupts.

l People convicted of an offence involvingfraud or dishonesty.

l People disqualified under the CompaniesActs from acting as directors.

l An individual, a trust or a corporation whoowns a nursing home in which you live oran employee or an agent of the owner(that is, unless that person is also yourspouse, child or sibling).


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What are the duties of an attorney?

Where an attorney acts on behalf of a donor,he or she must observe the following duties:

l To follow the terms of the power ofattorney as described in the documentsetting up the power;

l To act in good faith;

l To avoid conflicts of interest;

l To keep accurate accounts and records.

How do I create an EPA?

There are a number of steps tocreating an EPA which aredescribed in law. Unless youmeet these required steps, yourEPA will not be valid. You willneed the services of both adoctor and a solicitor tocomplete these steps. Theyinclude a description of theformat of the EPA document aswell as the steps involved. Insummary, the Regulationsdescribe:

The Regulations

that govern the

creation of an

EPA are part of

the Powers of

Attorney Act

1996 – they are

called Statutory

Instrument (SI)

No. 196/1996

and SI No.

287/1996


l (i) The various options which the donor haswhen granting an EPA;

l (ii) A statement signed by the donor thathe/she has read the explanatoryinformation regarding the creation of anEPA or has had it read to him/her.

l (i) The duties and obligations which anattorney may have under EPA;

l (ii) A statement signed by the attorneythat he/she understands these duties andobligations.

l The obligation on the attorney to keepadequate accounts.

l The remuneration, if any, of the attorneywho is entitled to out of pocket expenses,even if no form of remuneration isprovided for in the EPA.

l The execution requirements of an EPA.

l A statement by a solicitor in the formatprovided that he/she is satisfied the donorunderstood the effect of the EPA.

l A statement by a medical practitioner inthe format provided that, in his opinion,the donor had the mental capacity at thetime of execution to understand the effectof creating an EPA.

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The role of the solicitor:

Your solicitor must be satisfied that the EPA isnot being created as a result of fraud and/orundue pressure. In law, the document creatingthe EPA must follow a prescribed form andmust include the following statements by yoursolicitor:

l That he/she is satisfied that youunderstood the effect of creating thepower.

l That you are acting of your own free willand not under another’s influence.

The role of the doctor:

You will need a letter from your doctorverifying that, at the time the EPA was drawnup:

l You had sufficient mental capacity.

l You understood the effect of creating thepower.


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Your role:

l You are required to make a statement thatyou have understood the effect of creatingthe power. These statements act as legalsafeguards to ensure that you are creatingthe EPA in full legal knowledge of what isinvolved and that there has been noundue pressure placed on you to createthis power.

l You must also notify at least two otherpeople when you create an EPA – neitherof them can be the attorney you areappointing. These two people are calledthe notice parties. If the attorney laterapplies to register the EPA, these noticeparties must be informed in writing.

t If you have a spouse or civil partner

and he or she is living with you, thenhe or she must be one of these noticeparties.

t If you are unmarried, separated or

widowed, one of the two people youmust notify must be your child (if youhave children) or else a relation such asa parent, sister or brother, nephew orniece.

t Otherwise, anyone you like can be a

notice party.


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When does the EPA come into effect?

The EPA can only come into operation when ithas been registered in the High Court. Asolicitor or the chosen attorney normally holdsthe EPA documents until such time as they areregistered.

When your attorney sees that you arebecoming mentally incapable, he/she appliesto register the EPA to the Office of Wards ofCourt, a division of the High Court.

Before making an application, your attorneymust notify you of his/her intention to do so.The attorney must have a medical certificateconfirming that you are no longer capable ofmanaging your affairs. This notice must begiven to you and to the notice parties.

Is it possible to object to the registrationof an EPA?

The donor and the notice parties have fiveweeks from the date they receive thisnotification of registration to lodge anobjection with the Office of Wards of Court.

An objection might be made about, forexample:


l the unsuitability of an attorney;

l any suspected fraud or undue pressure onthe donor to create an EPA;

l an assertion that the donor of the EPA is infact mentally fit.

How can I revoke an EPA?

An EPA can be revoked by the donor at anytime before an application is made forregistration.

What happens if concerns arise afterregistration of an EPA?

A person who has a concern about theoperation of the power of attorney by theattorney, can write an affidavit (which is awritten statement describing a situation,sworn before a Notary Public or other legalofficer) to the Office of Wards of Court aboutthis concern.

Attorneys are not required to keep the courtsinformed of their actions. However, the donor,the attorney or any other interested personcan apply to the court for an Order, which caninclude directions on how the attorneymanages or disposes of the donor's property.The attorney can also be obliged to keeprecords and accounts of all financialtransactions if necessary.

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Can an EPA be revoked after registration?

When someone wants to revoke an EPA afterits registration, he or she must apply to theHigh Court. The court can make an Ordercancelling the EPA where, for example, it findsthat:

l there was fraud or undue pressure putupon the donor to create the EPA;

l the attorney is unsuitable (typically, whereonly one attorney has been appointed);

l the donor is mentally capable and willprobably remain so.

What decisions can I authorise myattorney to take on my behalf?

With an EPA, you may give your attorney(s) ageneral authority to act for you in relation toall your affairs. You may include an authorityto the attorney(s) to make personal caredecisions on your behalf. These do not usuallyinclude medical decisions. At all timesdecisions must be made in your best interest.

Where possible, the attorney should consultwith your family members and carers whenmaking these decisions. This is to ascertainwhat your views are, what would be in yourbest interest to do or what you would be

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likely to do in the circumstances. Personal caredecisions may only include:

l Where and with whom you should live;

l Whom you should see and not see;

l What training and/or rehabilitation youshould receive;

l Your dress and diet;

l The inspection of your personal papers;

l What housing, social services and otherbenefits you need.

The list does not cover health care decisions,though the distinction between personal caredecisions and health care decisions cansometimes seem unclear.

Must I give my attorney power over allmy affairs?

No, you decide which powers your attorneywill have over your affairs. You can make theEPA subject to particular restrictions orconditions. However, unduly restrictiveconditions contained in the EPA may lead tothe donor being made a ward of court.


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Can I change the person who isnominated as my attorney?

Yes, as long as the stage of registration hasnot begun.

Can I change my mind after executing anEPA?

Yes, once the stage of registration has notbegun. See above for concerns afterregistration of an EPA.

When does an EPA cease?

On death, unless previously revoked.

Legal Aid

You may be eligible for legal aid if you are aperson of moderate means. To qualify forlegal aid in civil cases your disposable incomeand assets must be below a certain limit, theremust be merit to the case and there must beno other satisfactory way of resolving theproblem. After approval, the Legal Aid Boardprovides you with the services of a solicitorand, if necessary, a barrister. You can apply forlegal aid for more than one matter at a time.The Board’s offices are called Law Centres andare located around the country. For thelocation of your nearest Law Centre, call 1890615 200.


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All those who are granted legal advice and/orlegal aid must pay a fee called a contributionto the Board. The minimum contribution is€30 for legal advice and €130 for legal aid.Law centre staff will advise what a person’sactual contribution will be as each person isassessed on an individual basis

Before you qualify for legal aid, you must firstsatisfy a means test. Your disposable incomemust be less than €18,000 and your disposablecapital cannot be more than €100,000.

If you are in receipt of allowances, they willbe taken into account and they are deductiblewhen calculating disposable income. Themaximum allowance on childcare facilities ifyou are working is €6,000 per child per yearand the maximum allowance on accom moda -tion costs (e.g. rent) is €8,000 per year. ThePublic Service Pension Related Levy and theUniversal Social Charge are now alsoconsidered and are deductible for thepurposes of assessment.

The value of an applicant’s home and itsnormal contents are excluded when assessingthe value of his/her capital resources(property). If your capital resources exceed€4,000, you must complete a Statement ofCapital.

For further details on financial eligibilityrequirements or for details of otherallowances, contact your local Law Centre. A


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full list is available at www.legalaidboard.ie.FLAC has prepared a guide to the state legalaid system which you can download atbit.ly/CLAflacsheet.

Useful addresses:

Office of the Wards of Court

3rd Floor, 15/24 Phoenix Street North,Smithfield, Dublin 7. Tel: 01-888 6189.

This office is principally concerned with theregistration stage of EPAs.

Need more information?

Legal information leaflets are also available

from FLAC on a variety of other areas of

law. They are free to download as PDFs

from the FLAC website or in print from your

local FLAC centre or Citizens Information

Centre.


FLAC Mission Statement

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote

equal access to justice for all.

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote equal accessto justice for all.

While every effort has been made to ensure theaccuracy of this leaflet, it is provided for generallegal information only and is not intended as asubstitute for legal advice. The information itcontains is correct as of date of publication. FLACdoes not accept any legal liability for the contentsof this leaflet. People with specific legal problemsshould consult a solicitor.

FLAC is grateful to John Costello, solicitor, for hishelp in updating and revising this leaflet.

FLAC offers free, confidential basic legal informationvia its lo-call telephone information line at 1890350 250 and one-to-one legal advice through itsnetwork of voluntary advice centres countrywide –www.flac.ie/help

This publication was supportedand part-funded by the Citizens Information Board

© FLAC – Free Legal Advice Centres, July 2014

LoCall: 1890 350 250 | www.flac.ie

@flacireland fb.me/flacireland

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