Mental incapacity arises and planning for it ensures there are plans in place and a designated person appointed to care for you, make the health and financial decisions for you in your senior years with ease and without acrimony and interference if at any time you are deemed mentally incapable and at your most vunerable. An Enduring Power of Attorney is what you need to put in place and below I outline some of the most basic and commonly asked questions I receive.
I particularly wish carers, relatives, healthcare professionals and providers to be more aware of how an EPA can support everyone planning for ageing and their senior years.
“An ounce of prevention is worth a pound of cure.” Benjamin Franklin
Q; What is an enduring Power of Attorney?
A; An Enduring Power of Attorney (EPA) is a legal document which allows an individual to nominate a specific person (usually a close family member) to look after both their personal ,health and financial affairs in the event of mental capacity in the future. An EPA can only become effective when the person who made the enduring power of attorney loses their mental capacity and legal steps are taken to bring the written document ,the wishes and instructions contained therein formally into effect.Simply put an Enduring Power of Attorney is a document which allows for someone (the attorney or donee) who a person has nominated (the donor) to make decisions on the donor’s behalf if and when they lose the ability to do so themselves.
Q ;How is having an Enduring Power of Attorney helpful?
A; An EPA can be an extremely powerful document that significantly bypasses the hurdles and problems your family could face when trying to deal with your affairs should you become mentally incapable.
The main purpose of an enduring power of attorney is to enable somebody of your choosing to have the entitlement to manage your property, financial and personal affairs for you if you lose your mental capacity at some future date.
Even though you may be mentally incapacitated the law will not allow any person family or otherwise without formal legal authority to deal with your property or your finance no matter how close they are in relationship to you and even though they may be acting or purporting to act in your best interests .
The major benefit of an EPA is that you make the choice when you are mentally agile ,alert and have full mental capacity of who you wish to be the person or persons you entrust such a tremendous power over your life to should you become incapable in the future. Preparing an EPA obviates the possibility of being made a ward of court if you lose mental capacity in your life time
Q; Why is having an EPA so Important?
It is estimated that there are approximately 50,000 people with dementia in Ireland today. These numbers are expected to increase to over 140,000 by 2041 as the number of older people in Ireland increases according to the Irish National Dementia Strategy, 17 December 2014). Dementia is just one example of a circumstance where individuals become mentally incapacitated and lose the ability to make decisions. Therefore the importance of planning to ease the burden on family members cannot be ignored. The importance of identifying who you wish to be the decision maker/s is very important.
When a person does not have an EPA executed and this person then becomes mentally incapacitated, the person’s family members will face a cumbersome and costly court application to attempt to have authority to manage your affairs and make important decisions for your own benefit. It is more likely you would be made a Ward of Court . It’s important to recognize not all family members may be in agreement about your care and how your financial circumstances should be dealt with .In contrast the cost of setting up an EPA is relatively inexpensive when you compare the cost of it to the real value and clarity it gives .
Q; At what stage of my life would I make an Enduring Power of Attorney?
A; I urge everyone over 55 to ensure they have a will in place and execute an EPA at the same time . The important aspect of this document is that you will complete it when you are mentally capable. The Donor (the person completing the documents )must have sufficient mental capacity to execute an EPA . Both the solicitor and the doctor acting for you make a statement as to your mental capacity at the time of your signing the documents . I sign the statement for my clients confirming I have interviewed them and that I am satisfied they are aware of the implications of making an EPA and that there is no reason to believe that the document is being executed as a result of fraud or undue pressure . Making provision for a loss of capacity whilst in your full health is what you need to do . It’s a precaution and the document may never need to be acted upon but plan for all eventualities to safeguard for your own care and welfare .
Q; Does the document always come into force when it’s signed?
A; When the EPA has been executed the power does not become effective until it is registered, the requirement to register the EPA occurs when it becomes clear that the donor no longer has the ability to make their own decisions. It is necessary to prove this incapacity with a medical certificate from a doctor that the donor is or is becoming incapable of managing their affairs.
Section 9(1) of the Act states, ‘If an attorney under an Enduring Power of Attorney has reason to believe that the donor is or is becoming mentally incapable, the attorney shall, as soon as practicable, make an application to the court for registration of the instrument creating the power.’
Once the attorney has applied for registration, they may act on the EPA, namely to take action under the power to maintain the donor and prevent loss to the donor’s property or savings. They may also make any personal care decisions that are authorised and cannot be deferred until the registration has been completed.
Q; What’s your advice Sharon Cahir?
A; Call me! Come in for a chat, understand the merits of putting an EPA in place. Be Prepared , have your affairs in order and be kind to those who care for you by planning ahead with clarity , understanding the significance ,safety and security of making success in succession your motto .
“Success depends upon previous preparation, and without such preparation there is sure to be failure.”
More info see ; Cahir and Co Solicitors www.cahirsolicitors.com 065 6828383