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We need to talk about Enduring Powers of Attorney

October 24, 2018

 

Margaret O’Connell talks about Enduring Powers of Attorney and why we all need to consider making one essential.

 

An Enduring Power of Attorney allows you to choose a person or persons to make decisions for you in the future if you become incapable of making decisions for yourself. 

 

The key aspect to the document is that of choice- it is your choice now who you would allow to make decisions on your behalf in the future.  Those decisions can range from personal care decisions to financial decisions or both. If you don’t make an Enduring Power of Attorney, and you become incapable of making decisions for yourself, then there are other mechanisms available to allow someone else to deal with your affairs. You could be made a Ward of Court or someone could be appointed a Care Representative for the purposes of the Fair Deals scheme. The disadvantage to both of these is that the choice is taken away from you as to who that person is. Instead it will be up to your family or friends to make the application on your behalf.

 

The Assisted Decision Making Capacity Act was enacted in 2015 but is not fully commenced yet. When that is fully commenced there will be other applications possible to help and assist a person without full capacity. However, in the case where you no longer have capacity to make decisions, the choice of the person appointed as your decision maker will no longer be yours to make. If you had already signed an Enduring Power of Attorney, the Act would recognise this and it would be fully valid.

 

There are currently over 55,000 people in Ireland living with dementia.  In the next 20 years, with an aging population, it is estimated that that figure will more than double.

Dementia is strongly associated with old age, but of course that is not the full picture. There are currently approximately 4000 people in Ireland with dementia under the age of 65. Added to that are instances of catastrophic medical events or accidents in which a previously healthy individual can become suddenly, tragically incapacitated.

 

It is essential to make a will but it is becoming equally essential for all of us to make an Enduring Power of Attorney ( sometimes called a ‘living will’).

 

In my experience as a Trust and Estate Practitioner I am often called on to help and assist where a family member is no longer able to make decisions for themselves. It is frequently the case that increasing confusion or forgetfulness is ignored until it is too late. The most frequent type of case I see is where families become overwhelmed with the needs of an elderly relative to the extent that they can no longer be cared for at home and suddenly are in need of nursing home care. If they have not signed an Enduring Power of Attorney and doctors judge them incapable of understanding the application forms themselves, then they cannot apply for nursing home care or the Fair Deals assistance. An application either to the Circuit Court or to the Wards of Courts office then becomes necessary.

 

In many cases, it would have been possible to have an Enduring Power of Attorney signed at the first onset of symptoms when the individual still had capacity to do so, but all too often it is left too late.

 

Making an Enduring Power of Attorney requires the assistance of your solicitor. Your solicitor will take you through the document and advise you on all the aspects.

Some of the aspects to consider are as follows.

 

A certificate must be given both by your solicitor and your medical practitioner to confirm, in their opinion, your capacity at the date it is signed.

 

Your chosen Attorney or Attorneys will be advised as to their rights and duties and will have to sign part of the document. To safeguard against any abuse, two close relatives must be notified that the Enduring Power of Attorney has been signed.

 

You will be guided through all of this by your solicitor who will make the necessary notifications and contacts on your behalf.

 

You can also revoke the power at any time in the future when you have capacity to do so.

On a final note, we all know the importance of making a will. But we should all consider how important it is to be able to make the choice as to who could make decisions for us in the future if we can no longer do so.

 

About the author: Margaret O’Connell is an Associate Solicitor and a qualified Trust and Estate Practitioner ( TEP) and is a member of STEP international.

 

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