Why make an Enduring Power of Attorney?

An EPA is a legal device in Ireland that can be set up by a person (the donor) during his or her life when he or she is in good mental health. It allows another specially appointed person (the attorney) to take actions on the donor's behalf if he or she is incapacitated through illness. Making an enduring power of attorney is one of the most important decisions you can make during your lifetime. Essentially it allows you to select two individuals who will take care of your affairs during your lifetime if you ever become incapacitated to a point where you can no longer make rational decisions for yourself such as

a)Where I should live

b)With whom I should live

c)Whom I should see and not see

d)What training or rehabilitation I should get

e)My diet and dress

f)Inspection of my personal papers

g)Housing & Social Service and other benefits for me.

The process involves your GP certifying your health and your solicitor confirming that you have the legal ability to make an EPA. Two notice parties are also notified of the existence of the EPA and the two people you have selected as your 'attorneys' also sign the documentation.

If then you ever require the EPA to come into force, i.e you become incapacitated, it is registered in the High Court. Once registered your attorneys can then make decisions and carry out tasks for you as and per the EPA. It is important that the donor of an EPA fully understands the purport of creating an enduring power of attorney, intends the power to be effective only when the donor lacks decision making capacity and the EPA is registered.

In December 2015 the Assisted Decision-Making (Capacity) Act 2015 (2015 Act) was enacted with Part 7 of the Act dealing with EPAs. (Part 7 has not yet been commenced). The 2015 Act provides that subject to certain exceptions, the 2015 Act will not apply to EPAs created under the 1996 Act. It also provides that from the date of the commencement of Part 7 - a person shall not create an enduring power of attorney under the Act of 1996 and the Act of 1996 shall not apply to an enduring power of attorney created after that date (i.e. EPAs created under the 2015 Act). Therefore, until the commencement of the new provisions relating to EPAs, EPAs will continue to be created under the provisions of the 1996 Act and the 1996 Act will continue to apply to them even if they come into effect – i.e. are registered - after the commencement of the 2015 Act. 

However once a 1996 Act EPA is created it will remain valid (unless amended or revoked) even after the commencement of the 2015 Act.