In Ireland, when a person becomes incapacitated, for example, through dementia, Alzheimer’s disease or brain damage, they may no longer have capacity or the ability to deal with those assets unless those assets are shared jointly with another person or the incapacitated person has an enduring power of attorney in place.

The enduring power of attorney (EPA) is a legal document whereby, an individual (the donor) selects another person (the attorney) that will act on their behalf in the event of them becoming incapacitated and unable to deal with their affairs. Previously, attorneys only had authority to make financial, legal and personal care choices on behalf of the donor. The new Assisted Decision-Making (Capacity) Act 2015 expands the existing enduring powers of attorney legislation to provide for EPAs for healthcare decisions (this act has not yet been fully implemented).

Under Irish law, there are two types of power of attorney: a general power of attorney and an enduring power of attorney.

The general power of attorney is a legal tool under which an attorney can act on behalf of the donor, either generally or specifically. General powers of attorney are often used if the donor is abroad or due to illness, is unable to tend to their own affairs. It allows the attorney to make decisions on the donor’s behalf in relation to property, business and financial affairs. These powers of attorney cease when a donor becomes incapacitated or dies. An enduring power of attorney is different. An EPA only becomes active once a person loses capacity. It is put in place so that a donor can choose a trusted person to look after them and their assets and property in the event of them becoming incapacitated. As the process involves the transfer of considerable powers over one’s self to the attorney, there are a number of legal safeguards in place to protect you from abuse. The process requires that you involve a doctor and a solicitor. There must be at least two notice parties to the creating of an EPA, neither of whom can be the attorney. An application can be made to register the EPA where a doctor is satisfied that the donor has lost capacity. Once registered, the High Court plays a supervisory role in respect of the EPA. It reserves the right to cancel the EPA on certain grounds.

If you become incapacitated without an EPA in place, it is a possibility that you will be made a Ward of Court. This is a much more expensive and longer process. It involves a Committee being appointed by the Court to act on your behalf. You have no say in who comprises this committee. The new 2015 Act proposes to overhaul the Wards of Court system with no new Wards being made once it is enacted but that is yet to happen. Therefore it is preferable to have an EPA in place.

O’Donovan, Murphy & Partners Solicitors are very experienced in the area of EPAs. Solicitor Barbara Daly is our specialist advisor in this area. Her expertise and knowledge of EPAs will help you avoid the common mistakes, dangers and pitfalls associated with the creation of an EPA, ensuring that your wishes and needs are catered for.