I was recently asked the question; “What happens if I am no longer mentally capable of managing my affairs, preventing me from making decisions about for instance; my medical treatment, my children, my assets?”. As it is such an important and complex area, I have decided to briefly outline one very important legal document.
Enduring Power of Attorney (EPA)
An Enduring Power of Attorney (EPA) is a document whereby a Donor (being the person who may lack capacity in the future) gives a general power to an Attorney (the person providing assistance) to act on their behalf. This may be in respect of all or some of the person’s property and affairs, or to do specified things on the person’s behalf.
An EPA is not to be confused with other forms of Powers of Attorney which are only valid whilst one is mentally capable of managing their affairs and, usually, these documents are limited in scope and/or time.
An EPA is not just for the elderly, a person can suddenly become mentally incapacitated due to an accident or mental health problems however, it is more commonly due to dementia.
It is important to note that the Donor must be mentally capable when creating the EPA, however, the EPA will only ever become enforceable if s/he thereafter loses mental capacity. It is essentially a precautionary legal mechanism to safeguard an individual if s/he ever becomes mentally incapacitated.
By creating the EPA, the Donor gets to ensure that s/he chooses who s/he would wish to act as their Attorney which often reduces the stress on one’s family at an already difficult time. The alternative, at present, is to make a person a Ward of Court, which is a much more costly, lengthy and complicated process.
The most common problem for one’s family when faced with their loved one becoming mentally incapable of managing their affairs, is that all of your assets are then frozen and your loved ones must find the resources from elsewhere to pay for your required care. This is when the EPA is most effective as, once registered, it allows for the Attorney(s) to access the Donor’s assets and also make “personal care decisions” on behalf of the Donor.
What is a personal care decision?
Personal care decisions can include:
- Deciding where and with whom the Donor will live.
- Whom the Donor should see and not see.
- What training or rehabilitation the Donor should get.
- The diet and dress of the Donor.
- Dealing with their housing and social welfare needs.
I think you will recognise that an EPA is an extremely important document that everyone should consider putting in place as a safety measure to protect you and your family in the event you should ever become mentally incapable of managing your affairs.
Assisted Decision Making (Capacity) Act 2015
The Assisted Decision Making (Capacity) Act 2015 was signed into law by President Michael D. Higgins on 30th December 2015. The Act will bring great change and result in significant improvements in the lives of persons with intellectual disabilities however, the Act has not yet been commenced.
Ian Sheehy heads up the Private Client Department at Keating Connolly Sellors and has extensive expertise in advising on Enduring Power of Attorney documents. For prompt and sensitive advice in this area, contact Ian at [email protected] or call +353 (0)61 414 355.
The material contained in this article is for general information purposes only and does not constitute legal or other professional advice. We advise people to always seek specific expert advice for their individual circumstances.