What is a Power of Attorney?

A Power of Attorney is a legal device created by a person (called the Donor) during their life time when they are in good health. It allows another specifically appointed person (called an Attorney) to take actions on behalf of the Donor when they are absent abroad or incapacitated through illness.
There are two types of Power of Attorney:

1. General Power of Attorney is a Power of Attorney that is given by the Donor and ceases as soon as the Donor becomes incapacitated. These are usually given when the Donor is out of the Country and wish to appoint an Attorney to act on their behalf in their absence.
2. Enduring Powers of Attorney are invoked when a person is incapable of managing their own affairs and among other powers allow an Attorney to make personal care decisions on the Donor’s behalf. These may include deciding where and with whom the Donor will live, who they may and may not see and what rehabilitation they should get. All of these Powers can be specifically chosen by the Donor when creating the Power of Attorney, and may be made subject to conditions and restrictions.

Note: Both forms of Power of Attorney cease on the Donor’s death.

Creating a Power of Attorney:

1. A General Power of Attorney: can be created once the Power of Attorney document is signed by you and witnessed by somebody in your presence.
2. An Enduring Power of Attorney: can only come into affect once certain procedures have been gone through and the Courts have a supervisory role in relation to Powers of Attorney.

Enduring Powers of Attorney documents must be in a specific format and include the following:

1. Statement from a Doctor for confirming the Donors mental capacity.
2. A statement from the Donor confirming they understand the effects of a Power of Attorney.
3. A statement from a Solicitor confirming they are happy the Donor understood the effect of creating the Power of Attorney.
4. A statement from a Solicitor that the Donor is not under undue influence.

In addition a number of people must be notified of the making of an Enduring Power of Attorney which would include family members e.g. Spouse, next-of-kin.

Who can act as an Attorney?

A Power of Attorney can be appointed to either individuals or to corporations however the following may not act as Attorney’s.

• A person under the age of 18.
• A person who has been declared bankrupt.
• A person convicted of a criminal offence (in relation to an act of fraud or dishonesty).
• A person disqualified under any of the Company Acts.
• A person or corporation who owns a nursing home in which the Donor is living.

Registration:

An Enduring Power of Attorney must be registered with the High Court and the future Attorney makes the application to the High Court once the Donor becomes incapacitated. A Medical Certificate confirming the Donor is incapable of dealing with their affairs must be submitted to the Court. A Notice of this application must be served by the Attorney, the Donor and a number of other people, those being the ones that were initially notified of the creation of the Power of Attorney.

Courts:

As stated above the Courts have a supervisory role in relation to Enduring Power of Attorneys and these include the directions about the management and disposal of your property.

Revocation of a Power of Attorney:

The Court may confirm the Revocation of a Power of Attorney once satisfied that the Donor is mentally capable to revoke it or the Attorney is unsuitable or undue pressure was placed on the Donor in creating the Power of Attorney.

Personal Care Decisions:

An Attorney makes certain personal care decisions on the Donors behalf which would include where and with whom they live, who they should and should not see, or training and rehabilitation they should get, their diet and dress, inspection of their personal papers, housing and social welfare

It is important to note however that the Attorney is not authorised to make health care decisions on the Donors behalf and it would appear that they would be unable to consent to medical treatment on the Donors behalf.

For further information please contact:

Hugh Joyce (Solicitor)
t: 068 50918
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Mary Walsh (Solicitor)
t: 068 50928
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