It is part of the human condition to believe we might be the ones to escape ill-health, infirmity, mental and physical incapacity. However, if misfortune should strike – whether through illness, an accident or elder infirmity – is it not preferable that we would each have chosen a person who we trust to be the guardian of our best interests if we are no longer capable of doing so for ourselves. Whilst the EU and UK recently wrangled and posturized about a ‘backstop’ of wholly different proportions, executing an Enduring Power of Attorney is a choice and provision each of us can make to protect ourselves, our interests and our assets into the future.
An Enduring Power allows you to choose a person or persons to manage your property, financial affairs and/or personal care decisions should you ever become mentally incapable of doing so.
The person or persons you choose to act on your behalf are known as Attorneys and, although you are free to appoint a number of Attorneys, one has to be conscious of practical difficulties and differing opinions when a number of individuals are involved. Further, in choosing your Attorney(s) you should be confident of their trustworthiness and in their skills to manage both your assets and personal care decisions whilst being mindful of the responsibility you will be placing upon them.
The Enduring Power may give a general authority to your Attorney(s) to do all lawful acts on your behalf or it may limit authority to specific acts or particular assets. It may include financial decisions such as responsibility for your income or pension, any business(es) you may be involved in, shares you hold, your property, payment of bills and/or investing your money. The duties may also be extended to permit your Attorney(s) to make Personal Care choices for you including decisions on where you might live, the training or rehabilitation you receive and housing, social welfare and other benefits for you . The scope of the powers granted to an Attorney and any limitations thereon should be determined by you, your own wishes and circumstances and therefore it is important that the Enduring Power is tailored to your individual requirements.
Upon the initial appointment of your Attorney(s), they do not possess any immediate power, rights or authority over your assets or affairs and indeed will not ever have such authority unless or until you become mentally incapacitated and the Enduring Power is activated. The Enduring Power is activated once it is successfully registered in the Wards of Court Office. The legislation goes to significant lengths to provide sufficient safeguards to ensure an Attorney cannot register the Power and assume control of your affairs without legitimate cause and unless a Medical Doctor certifies you are, or are becoming, mentally incapable of managing your affairs . You will be notified that any such steps are being taken.
One of the additional safeguards is that at the execution of the Enduring Power, you will have chosen a minimum of two persons to act as your Notice Parties. The role of these Notice Parties is that they must be notified if the Attorney(s) ever seeks to register the Enduring Power and take over the management of your affairs. Should such an application for registration ever proceed, it is open to the Notice Parties to object if they believe same is not in your best interests at that time or if they believe the Attorney is no longer suitable for such a role.
A further part of the human condition is that circumstances and lives change over time or we simply just change our mind. It is therefore reassuring to note that the Enduring Powers may be revoked at any time up until same is registered and whilst you have mental capacity to so do. To that extent, these Powers can evolve with your life and allow for new Attorneys, adapted circumstances or wishes.
For those individuals that choose not to execute an Enduring Power of Attorney there is some comfort that the law still provides a procedure to step in and protect an individual and their assets in the event they become incapacitated. This is achieved by an application before the President of the High Court to make an individual a Ward of Court, bring the assets of the Ward under the control of the Court and appoint a Committee to act on their behalf. The main grievances individuals appear to have with this procedure is the lack of control over decisions and assets as the Committee has no inherent authority or power – it may only do as the Court authorises and permits. Further as the Committee is appointed by the Court, it may or may not involve persons the incapacitated individual would have chosen to act on their behalf. Whilst this procedure is no doubt more cumbersome, lengthy and expensive than registering an Enduring Power it does at least ensure that for those who choose not to execute an Enduring Power they and their assets may still be protected during any period of incapacity or infirmity.
In reality, an Enduring Power of Attorney is executed with the hope that it will remain in the dusty confines of a Solicitor’s safe and never see the light of day but it is a document which is absolutely invaluable when needed and ensures that you have a say in your future no matter what that may hold.
Should you require any information please contact Niamh O’Connor of J.W. O’Donovan LLP, 53 South Mall, Cork or by email at noconnor@jwod.ie
