Q. CAN I MAKE A WILL DIRECTING WHO WILL LOOK AFTER ME IN THE EVENT THAT I SHOULD GET ALZHEIMERS OR SUFFER FROM SOME FORM OF DEMENTIA?
A. The best solution to this concern is to prepare both a Will and an Enduring Power of Attorney (E.P.A.). These Enduring Powers of Attorney are not just for the elderly, or those on the cusp of lacking mental capacity but, for each and every responsible adult. Making a Will governs the disposal of your assets on your death and is vitally important. However, how much more important is it to put in place a mechanism to govern the administration of your assets and indeed to authorise a person to make decisions as to your welfare, while you are still alive, but incapable of making those decisions yourself. This is where the Enduring Power of Attorney (E.P.A.) becomes so important.
An E.P.A. is an Instrument or document which complies with the strict procedural requirement of the legislation (Enduring Powers of Attorney Act 1996). It is a special type of a Power of Attorney, the consequences of which are significantly different to an ordinary Power of Attorney. This type of Power of Attorney is not revoked by the Donor (the person signing the Power) subsequently becoming incapacitated by virtue of dementia or mental incapacity of any other sort. It can only operate if at some point in the future, the Donor, being the person who creates the document, becomes mentally incapable of managing his or her affairs. As long as the Donor is well, the E.P.A. cannot be acted upon by the Attorney.
Any adult who has the required level of ability to execute an E.P.A. can plan for a possible future loss of mental capacity. In other words, it allows for the Appointment of an individual, an Attorney, to make decisions for the Donor in the sad event of future loss of capacity. The major benefit of an E.P.A. is that it is the Donor, him or her self, who decides, when capable, who is given such a tremendous power over his or her life, should he or she become incapable in the future.
The choice of the Attorney is a personal matter for the Donor. Obviously, it is important that the person who is chosen is trustworthy. Remember that the Attorney’s actions will be subject to little or no supervision. You should also make sure that the person chosen to be the Attorney is not in conflict by virtue of being a substantial beneficiary in your Estate.
You can appoint more than one person as your Attorney. You can choose for the two or more Attorneys to act jointly or severely i.e. whether they must act together when making decisions or can do so individually. Remember that the Attorney will, at your choice, be able to make both business, financial and personal care decisions, such as choosing a Nursing Home, deciding when the appropriate time is to move from independent living to sheltered or residential accommodation and can even make gifts.
The Act does require a Statement by a Solicitor and a Medical Practitioner, that the Donor, with the assistance of any explanations given to him or her by the Doctor, does have the mental capacity to understand the full effect of creating the Power. Many people only consider an E.P.A. when they are losing capacity, but in fact, the time to consider such a Power of Attorney is when you are well, not when you might be running out of time to have the mental capacity to execute the Power. Remember that it takes a certain amount of time to give instructions to your Solicitor to have the documents drafted, arrange for your Doctor to be present on the day of the signing and notify witnesses. As such, the time to consider such a Power is not when it is urgently needed, but when it is simply good forward planning for the future.
It is also important to remember that it is possible to revoke an E.P.A. at any time before it is registered. A formal document of Revocation needs to be signed, specifically confirming that the E.P.A. is being revoked and the original or a copy of the E.P.A. should be exhibited in the Revocation. Remember that the E.P.A. is signed when the Donor is well, but it only becomes registered when the Donor becomes of unsound mind. There could be a gap of many years between signing an E.P.A. and registering the E.P.A. Therefore, although it is a very important and formal document, nonetheless, it can be revoked before the Donor becomes of unsound mind.
Once the time is appropriate to register the E.P.A., a formal notification of an Application to register the E.P.A. must be served on the Donor and also on the persons who were notified of the execution of the E.P.A. and are named on it. Any person served with this Notice can object to the registration by sending the grounds of objection to the Wards of Court office within five weeks of receipt of the Notice. Assuming that there are no objections, then a Medical Certificate must be obtained from a registered Medical Practitioner to the affect that the Donor is, or where appropriate is becoming, incapable by reason of a mental condition of managing and administering his of her own property and affairs. Various documents are then completed by the Attorney and prepared by the Solicitor, and are forwarded to the Wards of Court office. Once the E.P.A. has been registered, the applying party will receive a document called a ‘Certificate of Registration’. At this point, the Attorney is now is full control of the Donor’s financial and personal well being, subject to any restrictions originally inserted into the E.P.A., as instructed by the Donor. The most important thing is to satisfy yourself that the chosen Attorney is trustworthy and the right person to make these important decisions for the Donor.
Q. I created an Enduring Power of Attorney some years ago and I appointed a family member as my Attorney. Unfortunately, my relationship with this family member has now deteriorated and we no longer speak to each other. Can I revoke the Enduring Power of Attorney?
A. An Enduring Power of Attorney can be revoked at any stage prior to it being registered. Once the Power of Attorney has been registered, when the Donor (the person who has created the Power of Attorney) is of unsound mind, then it cannot be revoked unless by application to the High Court. Until that point however, an Enduring Power of Attorney can be relatively easily revoked by simply notifying the Attorney appointed that it is being revoked and attending with the Solicitor who drafted it for you, advising him or her that you wish to execute a new Enduring Power of Attorney, if indeed it is what you wish to do. There should be no difficulty whatsoever in doing this.
Q. My husband and I recently got divorced. Previously, we had each appointed each other as our Attorneys under an Enduring Power of Attorney. Is this still valid?
A. The Enduring Power of Attorney ceases on a number of events and one of them is where the marriage/ civil partnership no longer exists due to an annulment, Divorce or dissolution. In this case therefore, both of your Enduring Powers of Attorney are automatically revoked. It is important therefore that you re-attend with your Solicitors and execute a new Will reflecting your new status and to re-execute a new Enduring Power of Attorney, appointing somebody else as your respective Attorneys. We would suggest that you do this sooner rather than later.
Q. Can you advise generally in relation to the scope of Authority of an Enduring Power of Attorney? What does it entitle the Attorney to do? I am thinking of executing one but, am a little concerned as to the Power which the Attorney may have.
A. It is true that the Attorney appointed under the Enduring Power of Attorney has huge scope and for that reason, it is very important that the Donor chooses the Attorney very carefully. However, the whole idea of an Enduring Power of Attorney is to prepare for an event which may or may not ever take place and that is the incapacity of the Donor. The idea is that somebody else will make personal care choices for you which would be in keeping with your own decisions, if you were of sound mind. Once the Attorney has been chosen, a certain amount of trust is needed for it to work. In general however, the following decisions can be made by your Attorney following the registration of the Enduring Power of Attorney: –
i) Where and with whom you should live;
ii) Whom you should see and not see;
iii) What rehabilitation you should get (if relevant);
iv) Your diet and dress;
v) Inspection of your personal papers;
vi) Housing, social welfare and other benefits;
vii) Healthcare decisions regarding residential care (if required);
You can limit the Powers of the Attorney but, in the event of the registration of a Power of Attorney, you will not be able to extend the powers so, on balance, most Donors grant the full ambit of powers to their Attorneys in the belief that they will use the power with their best interests in mind.
Q. My Mother signed an Enduring Power of Attorney some years ago and, I am now informed by her doctors that she is no longer able to manage her own affairs. What steps should I now take to register the Power of Attorney?
A. Firstly, I am sorry to hear of your mother’s deterioration but, she sensibly put in place the procedures to help the family to look after her in the event that she should no longer have mental capacity. The first thing you should do is to make an appointment to discuss the registration of the Power of Attorney with the Solicitor who drafted the Power in the first place. The Solicitor will want to look over the documents. The next step will be for the Solicitor to write to your Mother’s Geriatrician seeking a medical certificate confirming that she is no longer able to manage her own affairs. That will start the process of what is known as the registration of the Enduring Power of Attorney. Application has to be made to the REGISTRAR OF THE WARDS OF COURT but, five weeks before making such application, the Attorney must notify the Donor him/herself and the Notice Parties of his or her intention to proceed to registration of the Enduring Power of Attorney. The Donor (your Mother) can object but obviously if she is advanced in her dementia, this will not happen. Equally, the Notice Parties can object but they would need to have genuine reasons to do so and the only possible reason would be that your Mother is indeed capable of managing her own affairs. However, preference will be given to the decision of the treating doctor in this regard. Once the medical certificate is available and the various parties have been notified then, the application can be lodged citing the relevant grounds pursuant to Section 10(3) of the Enduring Powers of Attorney Act. It is important to point out that the High Court has an extensive supervisory role in respect of the Enduring Power of Attorney. Among other things, the Court has power to give directions about the management and disposal of the Donor’s property. The Court may confirm the revocation of a Power of Attorney if it is satisfied that the Donor is mentally competent to revoke it. This is the reason why the Donor must be served with a copy of the Notice of Intention to register the Enduring Power of Attorney so that they too can have a voice if they so wish. I hope that the above has been helpful.
Q. Can you explain what documents are required to create an Enduring Power of Attorney? My elderly parents are thinking of it and I am trying to encourage both of them to create the Powers but they require a little encouragement.
A. An Enduring Power of Attorney is a very important document and effectively, is the preparation for an event in life, whether likely or not, that the person signing the Power (The Donor) may become of unsound mind at some stage in the future. It is a very sensible document to sign and, it is really a document which should be considered as important as a Will in preparing for mental incapacity. Because the Enduring Power of Attorney involves the transfer of considerable powers from the Donor to another person, there are a number of legal safeguards to protect the Donor from abuses. The procedure for executing the Enduring Power of Attorney is complex and requires the involvement of a solicitor and a doctor. The Enduring Power can only come into effect when certain procedures have been gone through and the Courts have a general supervisory role in the implementation of the power. The document creating the power must be in a particular format and must include the following: –
i) 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;
ii) A statement from the Donor that they understand the effect of creating the Power;
iii) A statement from a solicitor that he/she is satisfied that the Donor understands the effect of creating the Power of Attorney
iv) A statement from a solicitor that the Donor was not acting under undue influence;
At least two people must be notified of the making of an Enduring Power of Attorney, none of whom will be the Attorney. One of the notice parties must be your spouse or civil partner, if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative, that is parent, sibling, grandchild, Widow/Widower, surviving civil partner of child, nephew or niece.
Although it is a very serious business, nonetheless, it is relatively straight forward although it does take some weeks to be completed in full including the notice which must be given to the notice parties. For that reason, your parents should be encouraged to have an informal chat with a Solicitor before they make their minds up as it would be reassuring to be told face to face the procedures involved. I hope that this has been helpful.
Q. My Mother is in the early stages of Dementia and I want to set up an Enduring Power of Attorney for her. I think that I should be appointed as her Attorney as I see a lot of my mother but I do have other siblings and I have not discussed this with them yet. Do I need to bring her to the Solicitor to start the process?
A. It is very important to clarify that Solicitors must ensure that instructions regarding the setting up of an Enduring Power of Attorney (E.P.A.) are taken directly from the intending Donor of the EPA i.e. in every instance, the person who will be signing the EPA. If your mother is not sufficiently mobile to attend with a Solicitor, she can send in written instructions. However, the Solicitor receiving the instructions must consider whether such instructions are adequate and most Solicitors will require to meet with the client to discuss the implications or and advise the client with regard to the execution of an EPA. When instructions are received from a third party for the preparation of an EPA (i.e. a family member) a Solicitor must obtain instructions from the intending Donor as to whether the intending Donor wishes the Solicitor to act for him or her and, if such instructions are received, then the Solicitor must ensure that the Donor is being fully and independently advised without regard to the interests of any third party. Every Solicitor engaged in the process of executing an EPA is obliged, as part of the formal execution of the EPA to certify that the Solicitor is satisfied that the Donor “understood the effect of creating the Enduring Power and has no reason to believe that the document is being executed by the Donor as a result of fraud or undue pressure”.
Therefore, all Solicitors will want to ensure that instructions are being given freely by the client. In addition, the intending Donor will be advised to read the explanatory information leaflet attached to the EPA or to have it read to him or her. The Solicitor must also explain fully the effect of creating the power and in short that the client understands this. Many older people execute an EPA when they are losing capacity. A Solicitor must be satisfied that the client has the mental capacity to give instructions and to execute the EPA. Again, as part of the formal execution of an EPA, a statement is required from a registered medical practitioner who knows the Donor saying that, “at the time the document was executed by the Donor, he/she had the mental capacity to understand the effect of creating the Power”. Despite this however, if the Solicitor has any doubts about the mental capacity of the client at the time of taking instructions then, it would be prudent to obtain the medical opinion at that initial stage.
Even where no such doubt exists, a Solicitor must ensure that the registered medical practitioner completing the statement as part of the process has examined the Donor at a time sufficiently close to the Execution of the EPA as to be able to make a judgment as to the Donor’s mental capacity to understand the effect of creating the Power. The Solicitor will also have to advise the client that, in addition to the benefits involved in the execution of an EPA, that there are also risks. These include the possibility that, in the event of the client’s incapacity that the Attorney has complete control over every aspect of the Donor and can make certain decisions on behalf of the Donor.
Although the choice of an Attorney is a personal matter for the Donor, a Solicitor should stress the need to appoint an Attorney or Attorneys who are trustworthy. A Solicitor will also advise a client that, on the registration of the EPA, the Attorney’s actions will be subject to little or no supervision. Most Solicitors will make enquiries about the Donor’s choice of potential Attorneys, in terms of relationships with the Donor, suitability, trustworthiness and skills necessary to manage the Donor’s financial affairs. A Solicitor will also advise the potential Donor that a conflict of interest may arise for an Attorney where the Attorney is also a potential beneficiary in the Donor’s Estate. The issue as to whether the Donor should appoint Joint Attorneys should include advice on the greater opportunity for abuse with the appointment of a Sole Attorney. The Solicitor will explain the Donor’s choice when appointing more than one Attorney, to specify whether the Attorneys are to be permitted to act jointly or jointly and severally. I.E whether they must act together when making decisions. In such circumstances, the client must be advised of the implications of Section 14 (3) of the Powers of Attorney Act, 1996 which provides: –
“Where two or more persons are appointed (or are deemed to have been appointed) to act jointly then, in the case of the death, incapacity or disqualification of any one or more of them, the remaining Attorney or Attorneys may continue to act, whether solely or jointly as the case may be UNLESS THE INSTRUMENT CREATING THE POWER EXPRESSLY PROVIDES TO THE CONTRARY.”
A Solicitor will take clear instructions as to whether the client wishes to appoint Joint Attorneys or whether the client wishes to appoint a sole Attorney. Any provision for a substitute Attorney must be made at the time of execution of the EPA.
Notice of the Execution of an EPA is required to be given to at least two persons. It is important that a Solicitor advises clients carefully of the order of persons who must be notified which are clearly set out on the Enduring Powers of Attorney Regulations 1996. The Donor must give notice of the execution of the EPA as soon as practical to at least two persons, none of which may be an Attorney under the Power. At least one of these persons must be: –
a) The Donor’s spouse if living with the Donor or;
b) If a) above does not apply (i.e. if the Donor is unmarried, widowed, or separated), notification must be given to a child of the Donor (if applicable) or;
c) If a) & b) do not apply, to any relative (i.e. parent, sibling, grandchild, widow/widower of child/nephew or niece, in that order)
Where a Spouse is appointed as Attorney, the Spouse may not be a Notice Party and the Donor should notify a child or other relative if there are no children or the child/ children are not appointed as Attorneys under the Power.
There is no period of Notice prescribed but the Notice should be served by registered or recorded post as soon as practicable (preferably within 30 days) of the execution of the EPA. Care should be taken to retain the documentary evidence of posting safely, as this will be subject to confirmation and, if necessary, an Affidavit grounding the application to register the EPA in the future.
A Solicitor should also advise the client that they can revoke an EPA at any time before it is registered (before the Donor becomes of unsound mind and incapable of giving instructions). The form of Revocation, which need not be by Deed, should specifically identify the EPA being revoked. The original EPA or a copy thereof should be exhibited in the revocation. Notification of the revocation of the EPA should be served on the named Attorney/Attorneys.
It is important to point out the scope of the Authority which goes with the EPA. The client must be advised of the meaning of giving a General Authority or indeed limited power to the Attorney. The Solicitor will explain the type of restrictions which are possible in an EPA. For example, there can be a restriction that the Attorney may not sell the Donor’s house. A Solicitor will then also get clear instructions as to whether the authority is to apply to all or only specified assets of the Donor. If the Donor wishes the EPA to be subject to restrictions and conditions then it needs to be carefully drafted to take account of these instructions. The Solicitor will also advise the client of the possibility of granting powers of personal care decisions and ascertain if the client wishes anyone other than the Attorneys to be consulted with regard to such decisions. Where it is intended to grant powers of personal care to the Attorney, a Solicitor should draw the attention of the Donor to the categories of personal care decisions in respect of which an Attorney may be given Authority and delete any which the intending Donor does not wish to grant. It should be noted that personal care decisions under an EPA do not extend to consents to medical treatment. It should also be explained to the Donor that the EPA grants with it the right of the Attorney(s) to make gifts to persons to whom the Donor would normally make such gifts. As this can be subject to abuse, it needs to be carefully explained to the Donor to ensure that such a power is not specifically excluded from the EPA.
As you can see therefore, it is extremely important that your mother is brought to a Solicitor who will have a private consultation with her for the purposes of ascertaining her wishes, with regard to setting up an EPA and indeed to satisfy him or herself that your mother is at a stage in her illness whereby she is capable of giving those instructions and that this capacity is confirmed by her treating doctor. We would suggest that you talk to your mother and act on her instructions if necessary by setting up an appointment with a Solicitor. We hope that this has been helpful.