An Enduring Power of Attorney (“EPA”) is a legal document that gives control to certain named person or persons (Attorney/Attorneys) over the assets and property of the client.

The EPA also grants authority to the Attorney/Attorneys to make personal care decisions on behalf of the client, once the client is no longer fully mentally capable of taking decisions for themselves. Personal care decisions may include where the client will live and with whom the client will live, who he/she should see and what training or rehabilitation he/she should get. However, in creating the EPA, the client can specifically exclude any of those powers when preparing the written form of the Power of Attorney. The client can also make the Attorney/Attorneys powers subject to specified reasonable conditions and restrictions. For example, a client may have a specific wish for treatment or rehabilitation to be undertaken or not to be undertaken. Restrictions and conditions can also be imposed in relation to the sale of property.

The EPA doesn’t come into effect until the person making it (the Donor) loses mental capacity.

In order for the EPA to take legal effect it must be registered by the nominated Attorney/Attorneys. However, an Attorney/Attorneys can take certain decisions or actions in relation to matters of personal care pending registration once the application has been made.

An EPA can be revoked any time before it is registered.

The Attorney/Attorneys appointed should be trustworthy. Upon registration the Attorney/Attorneys actions are subject to little or no supervision. It is worth noting that a conflict of interest may arise for the Attorney/Attorneys where the Attorney is also a potential beneficiary in the client’s estate.

In a situation where no EPA exists and a client develops mental incapacity a client can be made a Ward of Court upon the application of a family member. The Court would then appoint a Committee to manage the client’s affairs.

If you require advice in relation to the above please contact Patrick O’Donoghue on 01 6344680 or by e-mail at podonoghue@gjs.ie.

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