Roscommon (090) 6627350 Elphin (071) 9635024

You have worked hard all your life building up your farm and/or business and /or saving to provide for yourself and maybe a family. Have you thought about what would happen in the awful event that you met with a fatal accident and the one thing you hadn’t done was make your will? If you haven’t made a will and there are property and assets in your sole name, then the law sets out how your property is to be passed on. If you are married but have no children, then your spouse gets everything. If there is a spouse and children, then your spouse is entitled to two thirds and your children to one third in equal shares between them. You may have intended leaving everything to your spouse, but now the children have a legal entitlement to a one third share. This will cause difficulties where any of the children are under 18 or all the children cannot agree as to what should happen to their one third share. If you want to be in charge of what happens to any assets which are in your sole name after your death, then you must make a will.

When you have young children you should cater for the unthinkable and make a will which deals with the situation where both you and your spouse die together. You should think about whom you would wish to appoint as Executor/Trustees of your estate and also whom to appoint as guardians of your infant children. So whether you are twenty three or sixty three, if you have something to pass on, then you should make a will. It is also important to keep in mind that the will you make when you are young or newly married will need to be  amended to reflect your changed financial and family circumstances over the years. Come in and see us to discuss your own situation and take a great weight off your mind by finally getting a will made.

Enduring Power of Attorney

You have now made your will, but there is another issue that should be addressed by all of us. What happens should you no longer have the mental capacity to look after your affairs? You may be asset rich but cash poor and should there be a requirement for expensive long term care, it will not be possible for your spouse or loved ones to sell property and liquidate assets held in your name either solely or jointly with your spouse to pay for this care, because you lack the capacity to sign a legal document. The assets are there but the cash can’t be unlocked.

There is a legal document called an Enduring Power of Attorney (EPA) which has built-in safeguards which ensure that the power vested in the Attorney cannot be used without legitimate reasons. With this document you appoint someone (the Attorney) often a spouse or son or daughter to look after your affairs if you become incapable of doing so. You also nominate two people who are known as Notice Parties who are informed by registered post at the beginning of the process that you have signed this EPA. The Powers of Attorney 1996 Act sets out of the order of person who must be notified, namely A, the Donor’s Spouse if living with the Donor or B, if clause A does not apply a child of the Donor or C, if clauses A and B do not apply a relative (if any). Your Solicitor will advise you in relation to this at the time of your attendance with them.

Your doctor and solicitor must also sign Certificates stating that you fully understand what you are signing at the time. Nothing further happens and will never happen while you continue to be capable of looking after your own affairs. If your Attorney decides down the road that you are no longer capable of looking after your affairs, then he/she must register the EPA with the High Court and the two Notice Parties are informed immediately by registered post. If they do not agree with this assessment of your capacity then they will object on your behalf. This is a much better system than being made a Ward of Court which is extreme but was the only channel available to hard pressed families before the introduction of the Nursing Home Support Scheme (Fair Deal Scheme). So signing an Enduring Power of Attorney simply means that you are ensuring that you are in control of your own destiny. In many cases it will never be registered or required but it means that while you are in the whole of your health you decide who to trust to look after your best interests for a time when you can no longer look after this yourself.

The Government introduced the Assisted Decision Making (Capacity) Act, 2015 in December 2015 and it came into operation in 2016. Not all of the Act however has been enacted. The purpose of the Act was to make provision for supports to be available to assist people whose decision making capacity is in question however, Part 7 of the Act dealing with Enduring Powers of Attorney has not yet been enacted. If you do create an EPA under the 1996 Act and before the introduction of part 7 of the 2015 Act, your EPA is still valid even after the commencement of Section 7 of the 2015 Act. Once part 7 of the 2015 Act is commenced, you could if you so wish, revoke the EPA created under the 1996 Act and create an EPA under the 2015 Act, however there is no obligation to do so. The main reason you may do this is to avail of the benefit of the annual reporting provisions that are contained in the 2015 Act and imposed on Attorneys. Also under the 2015 Act, the Attorneys are assessed as to their suitability to carry out the functions of an Attorney. It is of course open to you
to put in a reporting obligation on the Attorney in an EPA created under the 1996 Act.