An Enduring Power of Attorney is a document a person creates while they are still in good health and able to understand fully what they are doing. This document is intended to grant a Power of Attorney to a person once the grantor is no longer in a position to look after their own affairs. There is an explanatory document which must be attached to the Enduring Power of Attorney form (EPA form) and the donor should carefully read this explanatory information given that an EPA is an extremely critical document.
The solicitor instructed should be absolutely certain that the intending donor fully understand that effect of the document. If there is any doubt about the mental capacity of the client at the time their solicitor is taking instructions, then it would be sensible to obtain a medical opinion.
It is very important to advise that there are cases where an EPA might not be appropriate. For instance if the solicitor is aware that there have been regular family disputes and a particular family member is being named in the EPA then this may not be appropriate although having said that, the grantor’s wishes should be respected if at all possible.
Who should be the Attorney?
The attorney should not be a person who is likely to cause conflict or who is not likely to act in the best interests of the grantor. If there are substantial assets involved then that person must be suitable, trustworthy and have the necessary skills to manage the client’s financial affairs. We would often advise a person to consider appointing two attorneys if there is the possibility of abuse. If however the attorney is thought by all parties to be appropriate and suitable then there is no reason why a sole attorney should not be appointed.
The normal attorneys appointed are spouses or close family or close friends. The fundamental point is that the attorney should be a person who can be completely trusted and relied upon to act in the donor’s best interest. Quite often a solicitor is asked to act as an attorney and while we are happy to accept such nominations, we would always advise a client that this should be very much a last resort.
Notice Parties:
One of the following must be notified of the making of an EPA:
- The donor’s spouse, if the spouse is living with the donor; or
- If the donor is unmarried or widowed or separated then a child of the donor should be notified if applicable; or
- If neither of the above apply then any relative can be notified in the following order:- parent, sibling, grandchild, widow/widower of a child, nephew or niece, in that order.
This notification should take place as soon as possible after the execution of the EPA.
Scope of powers contained in the EPA:
An EPA can grant general authority over a person’s entire estate or it can grant limited power to the attorney. For instance the grantor may not wish their family home to be sold or they may not wish to dispose of certain specific assets.
Personal care decisions are often granted to an attorney but it should be noted that while personal care decisions can be comprehensive, they do not extend to cover consents to medical treatment.
Revocation of an EPA:
A donor can revoke an EPA at any time before it is registered in the High Court. The Notice of Revocation must be served on the attorney and it also makes sense that revocation should be notified to whoever has been notified in relation to the completion of the EPA itself.
Role of the Court:
Applications can be made by any interested party to the court if there are certain concerns in relation to an EPA. If there is any question about the validity of the EPA, an application can be made to the court.
Attorney’s Powers:
We will always advise a client as to the extensive obligations of the attorney and the matters that must be taken into account. For instance, if the scope of the authority includes personal care decisions, we will advise what decisions can be made and in particular if there is a power to decide where the donor should live, we will advise in detail concerning the need in particular for the attorney to seek relevant medical advice or legal advice if this is appropriate.
Detailed accounts must be taken concerning the donor’s property and affairs and there is an obligation that the attorney cannot profit from his position as an attorney. Having said that, the attorney is entitled to be reimbursed necessary expenses and we would always advise an attorney that the court can become involved at any time if difficulties or serious questions arise.
Procedural Steps to register the EPA:
The EPA will generally be registered once the solicitor has satisfied himself or herself that the donor either is or is becoming incapable of managing his/her affairs.
The first step that should be taken is to obtain a medical opinion stating that the donor is or is becoming incapable of managing and administrating his/her own property and affairs.
Certain documentation must then be signed by the attorney and these notices have to be served on the donor and an Affidavit of Service has to be completed. The notice parties must also be served by registered post and Affidavits of Service have to be completed. The Registrar of the Wards of Court office are then notified of the intention to apply for registration and a five week period must then pass. The attorney must then swear an Affidavit setting out the facts of the background to the application and then a number of documents including the original EPA and the various other documents referred to above must be lodged with the Registrar of Wards of Court.
A donor may decide at some point in the future to revoke the EPA but this will not be valid without a court order and the application to revoke must be served on the attorney.
An EPA will continue to bind all relevant parties until the death of the donor or until a court order has been obtained.