The need for creating an Enduring Power of Attorney (EPA) has become an important topic of conversation for many people, particularly those who are elderly and those suffering from a diagnosis of dementia or Alzheimer’s. An Enduring Power of Attorney has become very popular in recent years given that the Department of Health has projected that the number of people in Ireland with Dementia will nearly treble in the next 30 years from 55,000 to more than 152,000.
The question of when an EPA can be created is important. Obviously the best time to create the Enduring Power is when you are in your optimum health and merely providing for your future care and maintenance. However, it is not too late if it is that you have been diagnosed with a disease that will debilitate your ability to make decisions for yourself into the future. The High Court has confirmed that capacity is assessed on the basis of a person’s ability to understand the nature and consequences of the decision in the context of available choices at the time the decision has to be made. Therefore capacity is issue specific and time specific. If you are capable of understanding the purpose of creating an EPA and your GP or medical attendant is in a position to certify same then you should act without any further delay and instruct a solicitor to create an EPA on your behalf. The assessment of capacity by a member of the medical profession is contained in the Medical Councils Guide to Professional Conduct and Ethics and the above will be used by the donor (person creating the Enduring Power of Attorney) GP or other medical attendant.
Your solicitor will ensure that he or she is satisfied that you understand fully the provisions of the EPA and that you have the necessary decision-making ability to create an EPA and to understand the scope and purpose of the powers that will be given to the Attorney(s) appointed under the EPA. Part of the process includes your Doctor certifying to your capacity to create the EPA. This Certificate will form part of the EPA document.
A solicitor will have to consider the different circumstances of the donor. For example, a donor that has full decision making capacity and is merely making provisions for their future is different to a donor whose decision making capacity may be in question due to ill health or age. Obviously such a person would be more vulnerable and different considerations would have to be applied in relation to determining capacity at the time and date of the donor creating the Enduring Power of Attorney.
When you are creating an EPA you will have the option of giving a general authority to your Attorneys to act on your behalf in all matters or limited power only. There is also an EPA that can be created specifically in relation to personal care decisions only, whereby you are authorising your Attorney to make decisions for you such as where you should live, with whom you should live, whom you should see and not see, any training or rehabilitation that you may require, your diet and dress, inspection of your personal papers and or matters relating to housing, social welfare and any other benefits for you. It is important you realise and understand fully the scope of the powers that your Attorney will have if it is that they have a general power to act on your behalf and that is also why it is extremely important to consider carefully the persons that you wish to act as your Attorney. You need to consider their suitability, trustworthiness, skills necessary to manage your financial affairs and any specific business interest that you may have and also their knowledge of which allows them to make decisions for you with the benefit of knowing you and what you yourself would want.
The 1996 Act provides that there must be at least 2 Notice Parties to the EPA. This means that at least 2 people must be notified that you have created an Enduring Power of Attorney and who you have appointed as your Attorneys. In the event that it is necessary to register the EPA i.e. you have lost capacity, those persons will be notified. Your Solicitor will advise you who is entitled to be a Notice Party.
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.
Unfortunately we must at some stage all address our future needs and requirements as we grow older. The provision of an EPA allows those who will be responsible for your care the legal right to act on your behalf in the most efficient way possible. It obviates the necessity of having to make a person a Ward of Court which can be a lengthy and onerous and costly procedure. The creation of an Enduring Power of Attorney is, simply, another way of planning for your future.