Enduring power of attorney

An enduring power of attorney (EPA) is a legal device that can be set up by a person (the donor) to allow another person (an attorney), to look after their financial or personal affairs, in the event that they no longer have the capacity to do so themselves.

Having an EPA is a good way of planning for the possibility that you may not be able to make certain decisions for yourself at some stage. A person can lose their decision-making abilities at any age. An enduring power of attorney is just one of the legal arrangements you can make in the event you become incapacitated or unable to deal with your affairs.

EPAs do not cover decisions about medical treatment. You can make an Advance Healthcare Directive if you want to make decisions about the medical treatment you get in the event that you lose your capacity.

EPA made on or after 26 April 2023

An EPA that was made on or after 26 April 2023 only takes effect when each of the following has occurred:

• The EPA has been registered with the Decision Support Service
• The donor lacks decision-making capacity
• The Decision Support Service has been notified of the incapacity and it accepts the fact

EPA made before 26 April 2023

An EPA made before 26 April 2023 only takes effect if registered with the Office of the Ward of Courts. An attorney can register the EPA when the donor becomes incapable of managing their affairs.

The Assisted Decision-Making (Capacity) Act 2015 changed the law that governs the creation and monitoring of EPAs.

The process of making an EPA is the same as before and EPAs that were already correctly made under the Powers of Attorney Act 1996 remain valid.

EPAs made on or after 26 April 2023

The most important change is that the EPA must be registered with the Decision Support Service within 3 months of being made. The Decision Support Service must also be notified when the donor lacks capacity. The Decision Support Service then supervises and monitors the EPA to make sure that the donor’s interests are protected.

EPAs made before 26 April 2023

If you made an EPA before the 26 April 2023, you do not need to register it with the Decision Support Service. If you lack capacity to make decisions, your attorney will register the EPA with the Office of the Wards of Court.

The only change for EPAs that were made before 26 April 2023 is that they now come under the Decision Support Service’s complaints procedure. Previously, complaints about EPAs had to go to the High Court, which was a long and costly process.

The EPA can give general authority to the attorney to do anything that the attorney might lawfully do, or it may merely give authority to do specific acts on your behalf.

Property and affairs

You can grant the attorney the power to make decisions regarding your property and affairs, including the power to:

• Sell, exchange, mortgage or gift your property (subject to some limitations)
• Buy property on your behalf
• Carry on a trade or profession on your behalf, where it is lawful to do so
• Carry out any contract you are a party to
• Pay your debts, taxes and carry out any other duties
• Apply for social welfare payments on your behalf

Personal welfare decisions

You can grant the attorney the power to make certain personal welfare decisions on your behalf.

A personal welfare decision includes a decision concerning one or more of the following:

• Your accommodation, including whether you should live in a designated centre
• Your participation in employment, education or training
• Your participation in social activities
• Decisions on any social services provided or to be provided you
• Healthcare

Healthcare does not include medical interventions. For example, the attorney does not have the power to decide as to whether or not a person suffering from dementia should undergo surgery. You can make an Advance Healthcare Directive to outline the medical treatment you would prefer in the event that you can no longer communicate your wishes.

Enduring power of attorney made before 26 April 2023

If your enduring power of attorney was made before 26 April 2023, the personal welfare decisions to be made by the attorney must be made in your best interests, must be in accordance with what you would have been likely to do, and the attorney must consult family members and carers in making these decisions. The attorney is considered to be acting in your best interests if they reasonably believe that what they decide is in your best interests.

Because the enduring power of attorney (EPA) involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you from abuses.

The procedure for executing the EPA is complex and you have to use a solicitor and a doctor or healthcare professional. The enduring power can only come into effect when certain procedures have been gone through.

The document creating the EPA must be in a particular format and must include the following:

• A statement from you that you understood the effect of creating the power
• A statement by a doctor or healthcare professional verifying that in their opinion you had the capacity at the time that the document was executed to understand the effect of creating the power
• A statement from a solicitor or barrister that they are satisfied that you understood the effect of creating the power of attorney
• A statement from a solicitor or barrister that you were not acting under undue influence
• A statement by the chosen attorney or attorneys that they understand their obligations and agree to be an attorney

The making of the EPA must be witnessed by 2 people.

Who cannot be appointed as an attorney?

An enduring power of attorney (EPA) may be granted to individuals or trust corporations but may not be granted to the following people:

• People under the age of 18
• People convicted of an offence against you, your property or your child or their property
• An individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, civil partner, child or sibling
• People convicted of certain offences under the 2015 Act
• Bankrupts or those in a personal insolvency arrangement (except where an EPA only grants them authority in personal welfare matters)
• People convicted of offences involving fraud or dishonesty (except where an EPA only grants them authority in personal welfare matters)
• People disqualified under the Companies Acts (except where an EPA only grants them authority in personal welfare matters)

An application should be made to the Decision Support Service to register an EPA within 3 months of being made. The Decision Support Service will then review the application and, if valid, register it.

If the Decision Support Service is not satisfied with the application, it will notify the donor and the attorney.

EPAs that were made before 26 April 2023 do not need to be registered with the Decision Support Service.

Who must I notify when I have made an EPA?

You must notify various people after you have made an EPA, including:

• Your spouse, civil partner or cohabitant
• Your children (over the age of 18)
• Any other persons who you may have appointed to assist you in making decisions under the 2015 Act

You may also specify in your EPA that certain other people be notified.

What you need to do when the donor lacks capacity to make decisions depends on when the EPA was made.

EPAs made on or after 26 April 2023

When the attorney has reason to believe that the donor lacks capacity in relation to a decision in an EPA, the donor must notify the Decision Support Service. The notification must be accompanied by statements from 2 people who are doctors or healthcare professionals supporting that belief. The donor and a number of other persons must also be put on notice of the notification to the Decision Support Service.

Within 5 weeks, the donor or a notice party can lodge a notice of objection on one of the grounds given in Section 71B of the Act with the Decision Support Service.

If the Decision Support Service is not satisfied with the application, it will notify the donor and the attorney.

However, once the Decision Support Service has been notified that the donor lacks capacity, the attorney may take certain limited actions in accordance with powers granted in the EPA to maintain you and prevent loss to your estate.

While waiting for acceptance of the notification from the Decision Support Service, the attorney may also make any decisions permitted under the powers that cannot reasonably be deferred until the application for registration has been determined. The attorney may also maintain themself and other persons, in so far as it is permitted under Section 71A of the Assisted Decision Making (Capacity Act) 2015, as amended.

An attorney is required to provide a report to the Decision Support Service on any actions taken and the reasons why the action could not be deferred.

EPAs made before 26 April 2023

In order to register an EPA, the future attorney makes an application for registration to the Registrar of Wards of Court, once there is reason to believe that the donor is now or is becoming incapable. The attorney must have a medical certificate confirming that the donor is incapable of managing their affairs.

Five weeks before making this application, the attorney must notify the donor and the notice parties of their intention to do so. Within the 5 weeks, the donor or a notice party can lodge a notice of objection on one of the grounds given in Section 10 (3) of the Powers of Attorney Act 1996 with the Registrar of Wards of Court.

Revocation of an enduring power of attorney made on or after 26 April 2023

Once the EPA has been registered, it can be revoked or varied by informing the Decision Support Service (DSS). This is only if a notification of a lack of capacity has not been subject to a notification that has been accepted by the Decision Support Service.

Your application to be revoked or varied must include:

• A statement that you understand the implications of your request
• A statement by a solicitor or barrister that you understand the implications of your request, and that they are satisfied that you are not acting under any pressure from another person
• If being varied, a statement by the attorney that they are aware of the variation

EPAs made before 26 April 2023 do not need to be registered with the DSS and can only be revoked in the High Court.

Fee waiver for registering an EPA

If you, as the donor, have revoked or are planning to revoke an EPA made under the 1996 Act and you wish to apply for an EPA under the 2015 Act, you can apply to the Decision Support Service to have the fee waived for registering the new EPA.

You must provide a letter from the solicitor that confirms the EPA made under the 1996 Act has been revoked before you can apply to register an EPA under the 2015 Act. EPAs created before 26 April 2023 can only be revoked in the High Court.

Rescinding an EPA if you regain your capacity

Once a notification of lack of capacity has been accepted by the Decision Support Service, the effect of an EPA can be rescinded if you regain your decision making capacity. In this case, you (or the attorney, or a close family member acting on your behalf) can write to the Decision Support Service. This will have the effect of cancelling the EPA.

Your application for the EPA to be rescinded must include:

• A statement that you understand the implications of your request
• A statement by a solicitor that you understand the implications of your request, and that they are satisfied that you are not acting under any pressure from another person
• A statement by 2 people who are doctors or healthcare professionals that you no longer lack capacity in relation to the relevant decisions set out in the EPA

For EPAs created before the 26 April 2023, you must apply to the High Court to revoke the power.

Termination of an enduring power of attorney

An EPA ceases on the death of the donor.

However, there are other circumstances in which an attorney can become disqualified. For example, where a spouse or civil partner is the attorney, the attorney becomes disqualified, unless the EPA provides otherwise, where:

• The marriage or civil partnership no longer exists due to annulment, divorce or dissolution
• A judicial separation is granted or the couple enter into a separation agreement

An attorney will also be disqualified in other circumstances, including if:

• The attorney is convicted of an offence against you, your property or your child or their property
• A protection or barring order is made against the attorney in relation to the donor or the donor’s child
• The attorney is a dissolved trust corporation

When an EPA has been registered and a notification of lack of capacity has been accepted by the DSS, an attorney must apply to court for consent to resign.

The Decision Support Service (DSS) monitors EPAs. They also keep a register of EPAs.

If your attorney informs the DSS that you have lost your capacity, they must also submit a list of your assets. They must submit a written report to the DSS every year, which sets out details of the costs, expenses or money paid to the attorney. They must keep proper accounts and records.

The DSS can send a general visitor or a special visitor to talk to your attorney if they get a complaint, or if they want to check that the attorney is acting in your best interests.