The procedure for the creation of an Enduring Power of Attorney was introduced by Statutory Instrument in 1996 as the “Enduring Powers of Attorney Regulations 1996”. It greatly simplified the procedure for the creation and recognition of an Enduring Power of Attorney which is often referred to as a “Living Will”.
If you lose your capacity through illness or accident and do not have an Enduring Power of Attorney in place, then sometimes an application must be made to have you become a “Ward of Court”. This process is a Court based process and everything that is done for someone under that process is done by application to the Wards of Court Office. It is therefore less time consuming and less expensive to have an Enduring Power of Attorney in place. It is usual to nominate a close family member to be your nominated Attorney and (s)he will be entitled to manage your financial and personal affairs for you much more easily (in accordance with the wishes set out in your Enduring Power of Attorney). It is therefore highly preferable and advisable to have an Enduring Power of Attorney in place particularly as one advances in years and if there is any deterioration in one’s health. In an ideal world everybody should have an Enduring Power of Attorney created (in addition to a Last Will and Testament) however an important distinction to remember is that your Last Will and Testament does not become a relevant document until after you have died. Your Enduring Power of Attorney will become relevant if your Attorney has to activate the powers on foot of that document if you become incapacitated.
In order to create an Enduring Power of Attorney your Doctor and your Solicitor will each sign Certificates confirming that, in their opinion, you are capable of understanding the nature, extent and import of an Enduring Power of Attorney. You then select a person or persons (usually two) to act as attorney on your behalf in the event that you become mentally (and often physically) incapacitated and are no longer capable of managing your affairs. Typically, an Attorney is a close family relative who can also make health decisions on your behalf. Notice of the creation of the Enduring Power of Attorney is served on two other close family members. The purpose of this provision is to ensure that there is no future abuse of process by the attorney as should the attorney(s) wish to invoke their powers on foot of the document then notice of their intention to do so has to be served on the notice parties. An Enduring Power of Attorney, after it is created, remains dormant unless the necessity arises to invoke the document which, thankfully, only arises in a relatively small percentage of cases.
The cost of creating an Enduring Power of Attorney is relatively inexpensive and should you wish to consult us at O’Hara Solicitors, Cross Street, Athenry, Telephone 091 844045 or by email at firstname.lastname@example.org we would be happy to help you.