Enduring Powers of Attorney

Enduring Powers of Attorney were created by the Powers of Attorneys Act, 1996 and came into existence on 1 August 1996. Prior to this Act coming into operation if a person became mentally incapable the only way someone could take over the running of his affairs was if the person was made a Ward of Court. This was- and is – a complex and expensive procedure. Any Power of Attorney entered into by the person before he became mentally incapable ceased to have effect once the Donor of the Power became mentally incapable.

Enduring Powers of Attorney differ from ordinary Powers of Attorney as follows:

They only become effective after the Donor of the Power becomes mentally incapable

“mentally incapable” means being incapable by reason of a mental condition of managing one’s property or affairs

the Donor is the person who makes the Power authorising the Attorney to act on his behalf in respect of the Donor’s affairs as set out in the Power

the Attorney is the person authorised by the Donor in the Power to act on the Donor’s behalf.

The Attorney must be:

over 18 years
has not been adjudicated bankrupt
has not been convicted of a criminal offence involving fraud
has not been disqualified under the Companies Acts
must not be the owner of a nursing home where the Donor resides
more than one person can be an Attorney
the Power must be granted in a prescribed form
the Power must be executed by the Attorney as well as the      Donor Under the form creating the Power, the Attorney acknowledges his obligation to register the Power with the Wards of Courts Office when the Donor has become or is becoming mentally incapable. The Power cannot be acted upon until it is registered

here is a duty on the Attorney to notify at least two persons named in the Power of the execution of the Power.

One of the persons to be notified must be a relative of the Donor and the Attorney cannot be one of these persons

The Attorney also has an obligation to notify these persons and the Donor, in a prescribed form, when he registers the Power

A notice party can object to the registration within 5 weeks of the date of the notice

If a nominated notice party is dead or has become mentally incapable at the time of the registration, the Attorney is obliged two notify 3 relatives of the Donor of the registration

The Donor may confer a general or specified authority

The Authority may provide for the needs of any person (including the Attorney himself) provided:

The Donor might be expected to make such a provision

The extent of the provision may only be such as the Donor might be expected to make

An Attorney may, if so provided under the Power, dispose of property by way of gift

Gifts of a seasonal nature

Gifts to charities which the donor might be expected to make
The Power may also give authority to the Attorney to make any specified personal care decisions on the Donor’s behalf in the Donor’s best interests

Person can be nominated by the Donor as someone to be consulted by the Attorney before making personal care decisions on the Donor’s behalf

The Donor must have the mental capacity to make the Power

A Doctor must sign a statement that in his opinion the Donor had the mental capacity to make the Power at the time of execution and understood the effect of the Power

Where a Donor is capable of making a Power - but not of managing his own affairs - there is an obligation on the Attorney to register the Power immediately