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What are the difference between a General Power of Attorney and an Enduring Power of Attorney?

Posted on by Luke Hanahoe

A Power of Attorney is a legal mechanism by which a person (known as a ‘the Donor’) allows another specifically nominated person (known as ‘the Attorney’) take actions on their behalf in accordance with the terms of the instrument. There are two types, a General/Ordinary Power of Attorney and an Enduring Power of Attorney.

A General/Ordinary Power of Attorney gives the Attorney specific or general powers to deal with the Donor’s property, business or financial affairs. A General/Ordinary Power of Attorney ceases when the Donor becomes mentally incapacitated or at the Donors request. They are usually used in circumstance where the Donor expects to be out of the country or unavailable for a period and requires the Attorney to carry certain functions on his/her behalf.

By contrast an Enduring Power of Attorney only comes into effect once the Donor becomes mentally incapacitated. It gives the attorney the ability to deal with the property, business and financial affairs of the Donor and to take ‘personal care’ decisions on behalf on the Donor in circumstances where he/she has become mentally incapacitated. However, it is open to the donor to exclude any of these powers, when they are having the Enduring Power of Attorney drafted.

Given the extensive and far reaching powers an Enduring Power of Attorney bestows on the Attorney, it is subject to much stricter controls and safeguards than an General/Ordinary Power of Attorney.

  • An Enduring power of Attorney can only be set up where a solicitor is satisfied that it is not being set up due to any fraud or undue pressure. A solicitor is not required in the making of a General Power of Attorney.
  • An Enduring Power of Attorney only comes into effect when the original document has been registered in the office of the High Court. A General/Ordinary Power of Attorney comes into effect immediately and does not have to be registered.
  • The Attorney of a General/Ordinary Power of Attorney can retire at any time. In an Enduring Power of Attorney, the Attorney can only retire with the consent of the Court.
  • The Donor can revoke a General/Ordinary Power of Attorney at any time. Once registered an Enduring Power of Attorney can only be revoked by an order of the Court.
  • Relatives do not have to be informed of the making of a General/Ordinary Power of Attorney, whereas the do have to be notified of the making of an Enduring Power of Attorney.

For information on Enduring Powers of Attorney or indeed any aspect of law regarding Wills or Probate, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

 

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other of wills or Probate Law, you should consult with a solicitor who specialises in Wills and Probate. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

‘Will I, won’t I’ The benefits of making a Will

Posted on by Luke Hanahoe

There are only two certainties in this life, death and taxes. It is for these two reasons that it is essential that everyone makes a Will.

Making a Will ensures that you can make proper provision for your dependants and that your property is distributed as you see fit, subject to certain rights of spouses / civil partners and children. Your solicitor should also be able to advice you on the most tax efficient way of distributing your Estate.

If you die without making a will, your Estate will be administered in accordance with the rules of Intestacy as set out in the Succession Act 1965. In brief this will mean that your entire Estate will be left to your spouse, in circumstances where there are no children. If you have children your spouse will be entitled to two thirds of your Estate and the remaining third will be distributed between your children. If you have no spouse your entire Estate will be distributed to your children equally. In circumstances, where you die single with no children, your Estate will be left to your parents, provided that they have not predeceased you. Otherwise it will be distributed between your siblings.

For further information on making a Will or indeed any aspect of Probate Law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

 

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other aspect of Probate Law, you should consult with a solicitor who specialises in Probate Law. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

5 things you should do if you have been in an accident in a public place and have sustained personal injuries.*

Posted on by Luke Hanahoe

Being involved in an accident, especially one where you have sustained personal injuries*, can be very stressful. If that accident happened in a public place, some people can also find it very embarrassing. A combination of both stress and embarrassment may lead the injured party to act in a way that very often compromises a personal injury* action they may wish to take. If you have been in such an accident and you have sustained personal injuries* you should do the following:

 

  1. Provided that your  injuries* do not prevent you from doing so, you should immediately report the accident to management or the relevant authorities.
  2. Again provided that your injuries* do not prevent you from doing so, you should photograph the area where the accident occurred. You should particularly photograph any obstructions that caused the accident, such as a broken tile or any spillages. These photos should then be developed and dated.
  3. Again if your injuries allow, you should take a note and contact details of any witnesses to the accident.
  4. Regardless of whether you believe your injuries are significant or not, you should consult your medical practitioner.
  5. If you have sustained injuries* in the accident and you want advice, you should consult with a solicitor who specialises in personal injury* law.

 

 

For further information in relation to accidents in public places or indeed any aspect of personal injury* law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

 

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other aspect of personal injury* law, you should contact us. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

 

*In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Examinership now more Accessible to Small Businesses

Posted on by Luke Hanahoe

What is Examinership:

Examinership is the mechanism whereby by a struggling and insolvent company is given the protection of the Court from its creditors to assist in its survival. Examinership is an alternative to winding up of a company that is in financial difficulties. If the Court is satisfied that the company has a genuine chance of survival, it can appoint an Examiner and the company will then be given a 100 days grace period to prepare a business plan and restructure its liabilities.

 

What has changed?

Under Section 2 of the Companies (Miscellaneous Provisions) Act 2013, an Examiner can now be appointed by the Circuit Court as opposed to the High Court. Companies can now apply to the Circuit Court for Examinership, as long as they satisfy at least two of the following three conditions:

  1. Their balance sheet does not exceed €4.4 million.
  2. Their Turnover does not exceed €8.8 million
  3. Their Employees must not exceed 50 in total.

 

What does this mean for small business?

Up until now an Examiner could only be appointed by the High Court. The costs associated with bringing such an application in the High Court excluded many viable companies from the process. Allowing the Circuit Court to appoint Examiners will reduce costs and make in more accessible to SMEs. It also means companies can have the process handled by their local Court as opposed to having to repeatedly attend the High Court in Dublin.

For further information on examinerships or indeed any aspect of company law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

 

This article is merely for information purposes only and is not and should not be taken as legal advice. If you have any queries in relation to this or any other company law matter, you should contact us. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

 

What is a Separation Agreement?

Posted on by Luke Hanahoe

A Separation Agreement is a mechanism by which a married couple can become separated without the necessity of them going through the Family Law Courts. It is a legally binding contract entered into by the parties setting out each party’s rights and obligations to the other.  It can often be a less expense and quicker way of becoming separated, than obtaining a Judicial Separation through the Courts.

Once both party’s reach an agreement, a legally binding contract is drawn up, known as a Deed of Separation. The main issues dealt with in a Separation Agreement are as follows:

  1. An agreement that both parts will live separate and apart
  2. The occupation and ownership of the family home
  3. Arrangements with respect to the custody and access of any children
  4. Maintenance and lump sum payments
  5. Taxation
  6. Succession Rights

A Separation Agreement can be made a Rule of Court by an application to the Court. This ensures that all the terms agreed upon can be legally enforced where covered by appropriate legislation.

It is important to note that a Separation Agreement cannot make Pension Adjustment Orders and the Trustees of Pension Schemes are not bound by the terms of a Deed of Separation. Therefore if one or both of the parties have a pension, it will be necessary to obtain a Judicial Separation from the Courts.

Once parties have entered into a formal Deed of Separation, they are not entitled to issue Proceedings through the Family Law Courts for a Decree of Judicial Separation. However obtaining a Deed of Separation is not a bar on the parties obtaining a Divorce at a later date.

 

For further information on Separation Agreements or indeed any aspect of Family Law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

 

This article is merely for information purposes only and is not and should not be taken as legal advice. If you have any queries in relation to this or any other Family Law matter, you should consult with a solicitor who specialises in Family Law. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

6 Things you should do if you are in a road traffic accident where you have sustained personal injuries*

Posted on by Luke Hanahoe

Being involved in a road traffic accident, particularly one where you sustained personal injuries* can be incredibly stressful. Very often you can be in a state of shock and naturally your sole concern is ensuring that you and the other parties are not badly injured. However to protect your interests, particularly were you have sustained injuries* you should do the following:

  1. If you or any other third party has suffered serious injuries*, you should immediately call for an ambulance.
  2. Provided you have not suffered serious injuries* and you are in a position to do so, you should immediately contact the Gardaí and inform them of the accident.
  3. Again, provided that you have not suffered serious injuries* and you are in a position to do so, you should take full details of the other party’s involved in the motor traffic accident, including their contact and insurance details.
  4. You should immediately inform your insurance company that you have been involved in a Road Traffic Accident*.
  5. Regardless of whether you believe you are badly injured or not, you should attend your medical practitioner so you can be checked out.
  6. If you have sustained personal injuries* in the accident and you want advice, you should consult with a solicitor who specialises in personal injury law.

For further information in relation to a road traffic accident* or indeed any aspect of personal injury* law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other aspect of personal injury law*, you should contact us. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

*In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Employment Law: Am I obliged to give my employees a written contract of employment?

Posted on by Luke Hanahoe

Once an employer starts to regularly pay a worker a wage or a salary, a contract of employment is deemed to exist. Although there is no requirement to furnish this employee with a written contract of employment, under the Terms of Employment (Information) Act 1994, an employer is required to furnish his employees with a written statement of the terms of their employment, within two months of them commencing work. This written statement must contain the following particulars:

  • The full name of  the employer and  the employee;
  • The address of the employer;
  • The place of work;
  • The title of job or nature of work;
  • The commencement date of the contract of employment;
  • If the contract is temporary, the expected duration of the contract or if the contract of employment is for a fixed term, the date on which the contract expires;
  • Details of rest periods and breaks as required by law;
  • The rate of pay or method of calculation of pay and the payment intervals;
  • Details of the hours of work, to include overtime etc.;
  • Details in relation to paid leave and sick leave;
  • Details of pensions and pension schemes;
  • Details of the notice period to be given by employer or employee;
  • Details of any collective agreements that may affect the employee’s terms of employment;

The statement of these terms must be signed and dated by the employer. However, there is no requirement for the employee to sign them. The employer must also keep a copy of the statement for the entire period of the employee’s employment and for at least a year after it ceases.

If an employee makes a complaint to the Rights Commissioner that the employer has not furnished them a written statement of the terms of their employment, the employer can be ordered to pay the employee compensation of a maximum of 4 weeks remuneration.

For further information on Contracts of Employment or indeed any aspect of Employment Law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other of Employment Law, you should consult with a solicitor who specialises in Employment Law. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

 

What is an Enduring Power of Attorney and why should I make one?

Posted on by Luke Hanahoe

An Enduring Power of Attorney is a legal mechanism by which a person (known as a ‘the Donor’) allows another specifically nominated person (known as ‘the Attorney’) take actions on their behalf in circumstances where the Donor becomes incapacitated. Unlike a General Power of Attorney, an Enduring Power of Attorney only comes into effect once the Donor becomes mentally incapacitated and only lasts while the Donor is still alive. Obviously an Enduring power of Attorney can only be made, while the Donor has full mental capacity.

An Enduring Power of Attorney allows the attorney the ability to deal with the property, business and financial affairs of the Donor. It also allows the Attorney to take ‘personal care’ decisions on behalf on the Donor in circumstances where he/she has become mental incapacitated. These decisions ordinarily include where the Donor will reside, how they will be cared for, who they should see or not see and what training and rehabilitation they should get. However it is open to the donor to exclude any of these powers, when they are having the Enduring Power of Attorney drafted.

Due to the extensive and far reaching powers an Enduring Power of Attorney bestows on the Attorney, it is subject to various controls and safeguards which protect the Donor from any potential abuse. An Enduring power of Attorney can only be set up where a solicitor is satisfied that it is not being set up due to any fraud or undue pressure. A Doctor is also required to certify that the Donor has sufficient mental capacity to understand the implications of the making of an Enduring Power of Attorney. An Enduring Power of Attorney will also not come into effect until the original document has been registered in the office of the High Court and Courts maintain a supervisory role in the implementations of its powers.

So why should one make an Enduring Power of Attorney? Firstly, it should be seen as an insurance policy, where should you lose your mental capacity, your affairs will be looked after by an appointed friend or relative you can trust. Secondly, in circumstance where you become mental incapacitated, it prevents the need for you to be made a Ward of Court. Being made a Ward of Court is a costly procedure, wherein the High Court decides on your mental capacity and appoints a committee to look after and control your affairs. An Enduring Power of Attorney takes the power out of the hands of the Court and allows you to decide who will look after your affairs should the need arise.

 

For information on Enduring Powers of Attorney or indeed any aspect of law regarding Wills or Probate, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

 

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other of wills or Probate Law, you should consult with a solicitor who specialises in Wills and Probate. No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

Think safety, Farm safely

Posted on by Luke Hanahoe

For the fifth year in a row, the agriculture sector has more work place accidents* and injuries than any other, according to the Health and Safety Authority. More than 1000 people a year suffer personal injuries* in farming accidents, and it accounted for over 50% of work place fatalities in 2014. The farm is a place where caution and good working practises are essential.

To ensure that you are farming as safely as possible and to prevent you and others from suffering personal injuries* in accidents on your farm, you should visit the IFA website at www.ifa.ie. You will find helpful tips there on how to avoid farming accidents* and you can also download a risk assessment form.

Some accidents are unavoidable and it is therefore essential that you are insured against potential personal injury* actions. If you have been involved in an accident on a farm you should consult with a solicitor who specialises in personal injuries* at the earliest possible opportunity.

For further information on farming accidents* or indeed any aspect of agricultural or personal injury* law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other aspect of agricultural or personal Injury* law, you should consult with a solicitor who specialises in agricultural and personal injury law.* No solicitor/client relationship or duty of care or liability of any nature exists between you and Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

*In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Are we to see a change in how medical negligence* cases are run in 2015?

Posted on by Luke Hanahoe

There has been considerable criticism over the last number of years, with respect to manner in which medical negligence* cases are run, the length of time it takes to conclude the action, the manner in which damages are paid and the level of costs associated with bringing such an action.

In order to resolve these and many other perceived issues, the High Court Working Group on Medical Negligence and Periodic Payments was set up to consider more efficient and effective ways to resolving medical negligence claims.* What they proposed, is the introduction of pre-action protocols and a case management system, similar to the UK. It appears the Government are now going to implement these proposals, with the possibility of there being draft legislation this year.

These proposals advocate a much more open exchange of information, where both sides exchange documentation and enter into negotiations at the pre litigation stage, to facilitate an early settlement. Case management procedures would be put in place to monitor the manner and time in which information is exchanged and negotiations are entered into.

But will these changes have the desired effect, of minimising the costs and facilitating a platform for the early settlement of medical negligence* claims? The Personal Injury Assessment Board (PIAB) was set up in 2003 with a similar mandate of reducing the litigation costs associated with bring personal injury* actions and to facilitate a quicker resolution of such actions. When insurance companies lobbied for the setting up of the injuries board, they claimed that the savings in legal costs would see a reduction in premiums. This never came to pass and any savings made by the injuries board, if any, have not been pasted on to the public. It also cannot be said that they have quickened the process of bringing a personal injury* action or made it more efficient. In fact, in a lot of circumstances they slow the process up, by insisting that the personal injury* actions have to go through the PIAB process.

It should also be noted that it has not been a resounding success in the UK and the cost savings have not been as a great as first envisaged. It has also seen, as has happened here with the injuries board, that some of the costs are now being passed on to the injured party, so it is the insurance companies and not they public seeing the real benefit.

For further information on medical negligence* or personal injury* law, please do not hesitate to contact Hanahoe and Hanahoe solicitors on 045 897784 or at info@hanahoeandhanahoe.com.

 

This article is merely for information purposes and is not and should not be taken as legal advice. If you have any queries in relation to this or any other aspect of medical negligence* or personal injury* Law, you should consult with a solicitor who specialises in medical negligence* and personal * law. No solicitor/client relationship or duty of care or liability of any nature exists between Hanahoe and Hanahoe solicitors, until you receive written confirmation that we are acting as solicitors on your behalf.

 

*In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.