An enduring power of attorney (EPA) only takes effect when the donor becomes mentally incapacitated and no longer able to manage their own affairs.
The EPA can give general authority to the attorney to do anything that the attorney might lawfully do or it may merely give authority to do specific acts on your behalf.
The attorney may make certain personal care decisions on your behalf – these must be made in your best interests, must be in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions. The attorney is considered to be acting in your best interests if they reasonably believe that what they decide is in your best interests.
You must have the mental capacity to execute an EPA. If you become mentally incapacitated and have not executed an EPA, the person who wants to look after your interests can apply to the High Court to have you made a ward of court.
Creating an enduring power of attorney
Because the enduring power of attorney involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you from abuses.
The procedure for executing the enduring power of attorney is complex and you have to use a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through. The courts have a general supervisory role in the implementation of the power.
The document creating the EPA must be in a particular format and must include the following:
A statement from you that you understood the effect of creating the power
A statement by a doctor verifying that in their opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power
A statement from a solicitor that they are satisfied that you understood the effect of creating the power of attorney
A statement from a solicitor that you were not acting under undue influence
A statement by the chosen attorney or attorneys that they understand their obligations and agree to be an attorney
At least 2 people must be notified of the making of an EPA, none of whom will be the attorney. One of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).
Majella Walsh Solicitors have the expertise to assist you. We pride ourselves on our clear communications and will assist you in every step of the transaction. We look forward to hearing from you. For further information and advice contact Majella Walsh Solicitors on 021 – 4757477 or email firstname.lastname@example.org.
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