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The Enduring Power of Attorney: Are Solicitors Playing Catch Up with Modern Medicine?

Have you ever wondered what would happen to you, your finances and assets in the event that you are not in a mental state to look after them? What if you suffer from an illness or accident that deprives you of the ability to think for yourself?

The ESRI have revealed that life expectancy in Ireland has increased by 15 years since 1950. Despite modern medicine and the healthy lifestyle leading to a longer lifespan, there are knock-on effects to this: the number of people suffering from dementia and Alzheimer’s are on the rise and according to the Alzheimer’s Society of Ireland between the years 2002 and 2036 the number of people suffering from dementia is expected to rise 303%.

The Enduring Power of Attorney is a document that steps in when you are not in a position to make decisions for yourself. Having the document drafted acts as quasi-security to safeguard your interests if the situation ever arises that you can not take care of them yourself.
The Enduring Power of Attorney (“EPA”) basically appoints a person/s to make personal care decisions for you when you are not mentally in a position to do so. It is important that the document is drafted before the situation arises as it cannot be retrospectively drafted.

It is a two stage process: (1) the execution of the EPA, and (2) the registration. It is important to note that the EPA does not come into operation when it is drafted. It is only when you are deemed to be incapacitated by a doctor that the document is entitled to be registered.
You, the drafter of the EPA, are called “the Donee” and you are required to appoint an Attorney (normally it is recommended to appoint 2 or more) who will be in the driving seat if the EPA is registered. The EPA can give as much power to the Attorney/s as you want: where you will live, your diet and dress.
As the power granted to the Attorney/s is significant and potentially dangerous there are a number of precautions in place to protect the Donor. The Donor’s doctor is required to meet with the Donor at the time that the EPA is drafted and sign a statement to say that the Donor is in a fit mental state to understand the document. The Donor’s solicitor must satisfy themselves that they have not been unduly pressurised to appoint an Attorney to look after their affairs and that they understood the significance of the EPA. The Donor must also sign a statement to say that they are fully cognisant of the meaning of the document. The Donor is also required to notify two “Notice Parties” to alert them to the fact that the document has been drafted.
As stated above the EPA does not come into operation until it is registered: again there are further safeguards for the Donor at this stage. Firstly, if the Attorney becomes aware that you are becoming mentally incapable they are obligated to notify both you and the Notice Parties who are provided with the opportunity to dispute this. Secondly, the Attorney will also need a doctor’s report saying that you are not in a position to deal with your affairs before they register the EPA with the Office of Wards of Court.
It must be noted that the EPA may not be a permanent arrangement: the Donor can revoke it at any time before registration. It can be revoked by the Courts if you become mentally capable again.
Due to the complexities of the document it is vitally important to consult with your solicitor. If there are any errors in the executing of the EPA it will not be legally valid and will be rendered useless. It must be noted that if the document is invalid it may be necessary for your next of kin to make an application to the Court to make you a Ward of Court. This will cause huge expense and is an uncertain and drawn out process.
As evidenced above, an EPA provided your next of kin with certainty as to how to approach your mental incapacity in the event that it needs to be addressed. Having the EPA in place is less costly and a shorter process than having to start the process of a Ward of Court application. You, the Donor, also have the peace of mind knowing that your personal care decisions are dealt with in a manner which you have already dictated to your Attorneys.

Do you need an EPA? – in a word: yes. Everyone who is in a position to do so should make it their priority to meet with their solicitor to arrange to have one drafted as a form of security for their future.

-Tanya Brady

If you would like more information on drafting an Enduring Power of Attorney please call the office on 071 91 45928 or email