A will specifies what happens when you die. In this day and age most people now make a will providing for the division of their estate on  death. However now that people are living longer and with the awareness in families of the difficulties arising if a parent suffers from a stroke, Alzheimer’s or other mentally debilitating condition considerations should be given to what steps can be put in place to ensure that decisions can be made for your benefit in a manner dictated by you.

If you are worried that you may at some time in the future become unable to look after your affairs when you are still alive the answer  – an Enduring Power of Attorney [EPA].

By executing an EPA you can effectively appoint a member (s) of your immediate family,  or indeed a trusted friend , relative or adviser to act  as your attorney if you become incapable of managing your affairs. Most importantly you can specify what decisions can be made by your attorney for and on your behalf such as :

  • where you should live
  • with whom you should live
  • your diet and dress
  • housing social welfare and other benefits
  • whom you should see and not see
  • what training or rehabilitation you should get

It is recommended that you name a person/persons  you would like your attorney to consult so that the attorney can have regard to that person’s views or comments on any decision to be made on your behalf as to what you might have wished yourself to happen and as to what might be in your best interests. However the ultimate decision rests with the attorney whom you have appointed.

It is important to remember that If you give your attorney(s) general power in relation to all your property and affairs the attorney (s)  will be able to deal with your money and/or property and will be able to make a decision , if this  was required , such as selling your house. It is for this reason that a careful and considered decision should be made by you , in consultation with your family , friends or adviser, as to whom you appoint as Attorney.

Once the EPA is signed by you two other members of your family must be formally notified in writing – the notification cannot be to the person(s) appointed as your Attorney. In addition your Solicitor must complete a written certificate to state that that you understood the effect of creating the enduring power and that the Solicitor had no reason to believe that the document was being executed by you as a result of fraud or undue pressure.

Your Solicitor also must obtain from your Doctor a written certificate that you had the mental capacity, with the assistance of such explanations as may have been given to the you, to understand the effect of creating the power. All the documents prepared must be retained and furnished to the High Court office if the EPA is to be subsequently registered.

If your Attorney(s) has reason to believe at any time in the future that you have become or are becoming mentally incapable of managing your affairs your Attorney(s) must apply to have the Enduring Power registered in the High Court. Once registered, an Enduring Power of Attorney cannot be revoked unless the High Court confirms the revocation. However you are entitled or amend to revoke the power at any time before registration  [in the same manner as you are always entitled to amend your will at any time before your death].

Another important safeguard built into the regulations is that written notice of the application for registration must be given to the Registrar of Wards of Court and also to the you and the person(s) whom the donor has notified of the execution of the enduring power. If these people are no longer available, notice must be given to certain relatives.  An objection can be filed in the High Court if it is believed that you are still capable of managing your affairs.

The Enduring Power Attorney does not come into force until it has been registered. Once an Attorney has applied for registration he/she/they  may make any personal care decisions permitted under the power that cannot reasonably be deferred until the application for registration has been determined.

For further information on this very unique Deed please contact

info@bnsolicitors.ie or ring 045 432382

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