Powers of Attorney
Enduring Powers of Attorney
An Enduring Power of Attorney is an instrument which a person may create to the effect that they intend the power to be effective during any subsequent mental incapacity. It allows a person to create an instrument which becomes effective in the event that they no longer have the capacity to manage their own personal or financial affairs. It allows you to place decisions relating to your personal and financial affairs into the hands of one or more specified persons. You may only make an enduring power of attorney when you have the mental capacity to do so, a medical practitioner and your solicitor must certify that at the time of execution the donor had the mental capacity to understand the effect of the instrument.
What is the scope of authority that the power confers upon my nominated attorney?
The power may confer a general authority to act on your behalf in relation to all or part of your property or affairs. In short you may wish to confer on the attorney the power to act generally on your behalf or as the case may be to do specified things subject to conditions and restrictions. You may also create an enduring power which only relates to your personal care decisions, such as where you live, with whom you should live with, your diet, your dress and inspection of your personal papers. It is important to understand that the instrument will become effective only during subsequent mental incapacity and that it is only then that you will pass over control of your assets to your nominated attorneys. As outlined above, you may tailor the power to address specific issues rather than conferring a general power to act on your behalf.
Who may I nominate as my attorney?
This is a personal matter and you may appoint one or more attorneys. In the event that you appoint more than one attorney, you must specify whether you wish for them to act jointly or severally. You may appoint anyone as your attorney, however you should consider their suitability and legal advice should always be taken prior to nominating an attorney. Notice of execution of the enduring power is also served on two notice parties who may not be one of your nominated attorneys.
When does the Enduring Power come into effect?
An enduring power cannot be registered until the donor is or is becoming incapable of managing their own affairs. A medical practitioner will be consulted prior to registration to assess whether the donor is no longer capable of managing their own affairs. The notice parties and the donor will be served with a notice of intention to apply for registration, this notice will allow a period of 5 weeks from the date of the notice to object to the registration of the enduring power on a number of grounds including but not limited to circumstances where the notice party is of the opinion that the donor is not, or is not becoming mentally incapable or that undue pressure was placed upon the donor to create the power. This in effect operates as a safeguard against any applications for registration of a power in circumstances where the instrument’s registration is not warranted.
The benefits of creating an enduring power of attorney is that it allows you to choose the people you wish to manage your financial and personal care decisions upon any subsequent mental incapacity. It is important to note that an enduring power of attorney may only be made when the person creating the power is still in good mental health. In circumstances where there is no enduring power of attorney in place and a person becomes unwell, then a person who lacks capacity may be made a Ward of Court on application by a family member to the Office of the Wards of Court. This is a far more expensive process and takes your affairs out of your hands and places them in the hands of the Wards of Court Office.
What is a Ward of Court?
It is always best to have an enduring power of attorney in place, however in the event that there is no power in place prior to mental incapacity then and in that event it is necessary to apply to the High Court to make a person a ward of court. The majority of applications to make a person who lacks mental capacity a ward of court is commenced by their next of kin. Someone who is concerned about a person’s mental incapacity should file a petition in the Office of the Wards of Court. This petition will seek an inquiry by the High Court as to the soundness of mind of the person who is of concern together with an inquiry as to whether the person of concern has the capacity to manage their personal and financial affairs. This petition much be accompanied by two medical affidavits stating that the person is of unsound mind and incapable of managing their own affairs. Upon receipt of the petition the High Court may order that person is examined further by a medical practitioner chosen by the High Court.
Can someone object to an application to be made a Ward of Court?
Notice of petition must be served on the proposed ward. The proposed ward may complete a notice of objection. In this event, an inquiry will be held together with an exchange of medical affidavits. Upon hearing of the evidence and upon conclusion of the inquiry which may be held either with or without a jury, the president of the High Court must make an order declaring whether or not the proposed ward is or is not of unsound mind.
What happens if an order is made by the High Court making a person a Ward of Court?
The President of the High Court has discretion over who they appoint as a committee. The Committee so appointed will then be entrusted with the treatment and well-being of the ward. The Registrar of the Wards of Court will stay in contact with the committee who are obliged to periodically keep the registrar updated on the ward’s place of residence and general wellbeing.
What happens to the Ward’s property?
The committee is entrusted with the responsibility of managing the ward’s estate. A committee may apply for monies from the registrar to use for the ward’s maintenance and benefit, they may also apply to discharge all outgoings of the ward’s estate. When a committee receives monies on behalf of the ward they must immediately lodge these monies to the Ward’s estate. The committee is required to produce annual accounts of the affairs of the ward and these must be lodged in the Office of the Wards of Court.
What powers does the Court have over the Ward’s Estate?
The Court may make a number of orders in relation to the Ward’s estate including but not limited to the following. The Court may order the payment of a Ward’s debts. The High Court can also sell the Ward's property should it be considered necessary for the Ward’s continued benefit. Where it is proposed to sell property owned by a Ward the committee should make an application to the registrar at first instance. The registrar must approve any such sale and must approve any conditions for sale prior to proceeding. The Court also has the power to lease property owned by the Ward and in certain circumstances may mortgage or charge property provided that it is for the benefit of the ward in question.
As outlined above, the alternative to the procedures available under the Wards of Court system is an enduring power of attorney which is far less onerous and allows you to prepare for and plan for any subsequent mental incapacity in advance. An enduring power of attorney allows you to place your personal care and financial affairs into the hands of those who you trust, it takes all uncertainty out of a situation whereby subsequent mental incapacity becomes an issue. It is a far less expensive and less complicated process and gives you peace of mind to ensure that your affairs will be adequately managed in the event of subsequent mental incapacity.
Should you wish to make a Will or discuss any of the above matters, please contact us on (01)-8338147 or alternatively you can contact us by email at [email protected]. We are available to meet you in person or in the event that you are unable to meet at our office, we can arrange to meet you at a suitable time and place.