Hanahoe and Hanahoe would recommend that all clients prepare an Enduring Power of Attorney to protect themselves and their loved ones should they ever become incapacitated through an injury or accident.
What is an Enduring Power of Attorney?
It is a legal mechanism by which a person (a donor) nominates another person (an attorney) to take specific decisions/ actions on their behalf, in circumstances where they become incapacitated. These actions can be limited by the donor as they see fit. Generally however they allow the attorney make the following decisions:
(a) Decisions in relation to the donors property.
(b) Decisions in relation to the donors business and financial affairs.
(c) Personal care decisions on behalf of the donor, such as where they will reside and who will take care of them.
As these are very extensive powers, it is essential that the donor has full mental capacity when they are drafting the power of attorney. It is also essential that they trust the attorney implicitly. We would therefore suggest that you would appoint two attorneys to ensure that not one single person has complete control over your affairs.
To protect the donor from any potential abuse the following safe guards are put in place when drafting an enduring power of attorney:
1. A solicitor has to be satisfied that it is not being set up due to any fraud or due to the donor being put under any pressure.
2. A doctor is required to certify that the donor has sufficient mental capacity to understand the implication/ ramifications of making an enduring power of attorney.
3. The adjourning power of attorney only comes into effect once it has been registered in the High Court.
4. The Courts maintain a supervisory role in the implementation of its powers.
5. The donor can revoke an Enduring Power of Attorney at any time before an application is made to register it. Thereafter it can be revoked by an application to the Court.
Why should you make a Power of Attorney?
1. It ensures that your affairs are looked after by a trusted friend or family member, should you lose mental capacity.
2. It prevents your loved ones having to bring a costly application to the high Court, where a High Court Judge will decide on your mental capacity and who looks after your affairs.
3. It allows you to decide who should look after you affairs, should you lose mental capacity, as opposed to a High Court Judge.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.