Categories
Wills and Probate

Powers of Attorney-What You Should Know

power of attorney

Have you an elderly parent or loved one? Perhaps you yourself have thought about creating an enduring power of attorney to make provision for a day when you become incapacitated.

If so, the need for a power of attorney may arise at some stage.

A power of attorney is a legal document which allows a person (the donor) to give powers to another person (donee/attorney) to take certain actions on behalf of the donor.

There are two types of power of attorney:

        1. a Power of Attorney
        2. an Enduring Power of Attorney.

A Power of Attorney can only be created by a donor when he is not mentally incapacitated and understands what he is doing. It can grant a specific power-for example, to buy or sell property- or general powers to the donee.

A form to create a general power of attorney can be found here in the Powers of Attorney act, 1996.

An Enduring Power of Attorney(EPA) comes into being when a person becomes incapacitated.

It allows the donee to make personal care decisions on behalf of the donor when the donor becomes mentally incapacitated. Generally, anyone can be appointed an attorney (but there are exceptions eg a bankrupt or person under 18 years), but creating an enduring power of attorney is more complex than creating the general power of attorney.

How to create an enduring power of attorney

Creating an enduring power of attorney will involve a doctor and solicitor.

It can only come into effect when certain procedures have been followed.

The instrument (document) creating an enduring power of attorney must follow a certain format and must

      • include a statement from the doctor that the donor had the mental capacity to sign it at the time it was signed and understood the effect
      • contain a statement from the donor to the effect that he knew the consequences of creating the enduring  power of attorney
      • include a statement from a solicitor that the donor had the capacity to make the enduring power of attorney, and that the donor was not acting under any duress or undue influence.

At least 2 people must be notified of the making of the enduring power of attorney, and these people cannot include the donee (attorney).

One of the notice parties must be a spouse or civil partner; if there is none, a child must be notified. If there is no child a relative must be notified.

The EPA only comes into force when it is registered. This involves an application to the Registrar of the Wards of Court in the High Court and this can only be made when the donor is, or is becoming, mentally incapable. There must be a medical certificate confirming that the donor is incapable of managing his affairs.

The High Court has extensive supervisory powers in respect of the EPA once it is registered. It can give directions about the management and disposal of the property of the donor, and it can revoke or cancel the EPA if it is satisfied that

          1. the donor is mentally capable
          2. fraud or undue pressure was used in the creation of the EPA
          3. the attorney is unsuitable.

An EPA can give general powers, including personal care decisions, to the attorney, or specific powers. All decisions must be taken in the best interests of the donor and the donor’s family, and carers, must be consulted.

Personal care decisions includes things like where the donor should live, their dress and diet, who they should see and not see, and so forth.

In fact, personal care decisions are defined in the legislation as follows:

“personal care decision”, in relation to a donor of an enduring power, means a decision on any one or more of the following matters:
(a) where the donor should live,
(b) with whom the donor should live,
(c) whom the donor should see and not see,
(d) what training or rehabilitation the donor should get,
(e) the donor’s diet and dress,
(f) inspection of the donor’s personal papers,
(g) housing, social welfare and other benefits for the donor;

A donor can revoke an EPA anytime before it is registered; however, if it is registered an application must be made to the Court to have it revoked.

An EPA ceases on death of the donor, and there are also some other limited circumstances where the enduring power of attorney will be terminated.

The relevant legislation dealing with powers of attorney is the Powers of Attorney Act, 1996.

What to do now

If you want to create a power of attorney or an enduring power of attorney contact Terry to make an appointment to discuss.

Categories
Family Law

Wards of Court in Ireland-a Quick and Easy Guide

ward-of-court

This article will look at the  Wards of Court procedure in Ireland.

Why Wardship?

The main purpose of Wardship is to look after the welfare and to protect the property of a person where this is considered necessary. The Office of Wards of Court is responsible for administering this process.

Types of Wardship

There are two types of Wardship. One covers adults who may require the Court’s protection because of mental incapacity. This covers the majority of persons taken into Wardship.

The second concerns persons under 18 years of age who require the Court’s protection for particular reasons and who when taken into Wardship are known as Minors.

When considering whether or not a person over the age of 18 years should be taken into Wardship, the Court must be satisfied that the person is, on the basis of the medical evidence available, mentally incapacitated and incapable of managing his or her affairs, and that it is necessary for the protection of his or her person or property that he or she be taken into Wardship.

Who applies for wardship?

Usually a family member applies.

Types of application

  • Application made by a form of request known as a petition which is accompanied by two medical affidavits. This is the usual form of application.
  • Application made by petition accompanied by medical affidavit or medical report where the respondent’s property does not exceed €6,350.00 or where his annual income does not exceed €380.00.
  • Application made by letter to the Registrar. This form of application is only used where there is no willing and suitable person to act as petitioner.

The procedure governing Wardship is set out in Order 67 of the Rules of the Superior Courts. The procedure in respect of applications to bring persons under the age of 18 years into Wardship as Minors is set out in Order 65 of those rules.

Notice of the proposed Wardship application must be served personally on the proposed Ward. It is only in very exceptional circumstances that some other form of service is allowed.

A request for Wardship may also be made to the Circuit Court where the property of the person does not exceed €6,350.00 or the income from that property €380.00 per annum, (See Section 22(2) of the Courts (Supplemental Provisions) Act, 1961 as amended by Section 2 (3) of the Courts Act, 1971.) In such a case the local Circuit Court handles the application.

Enduring Power of Attorney

If, prior to becoming mentally incapacitated, a person has made alternative arrangements, by completing a document called an Enduring Power of Attorney, it should not be necessary to bring Wardship proceedings.

Committees

A “Committee” in the Wardship context means one or more persons to whom the welfare or affairs of a Ward are “committed”. The Committee is therefore the person(s) appointed by the Court to act on behalf of the Ward. There are two kinds of Committee:

(a) The Committee of the Person who has the responsibility of overseeing the personal care of the Ward

(b) The Committee of the Estate who has the responsibility for assisting the Court in managing the financial affairs of the Ward.

The Committee acts under the directions of the Court either personally or through his or her solicitor. The Court may also require the Committee to follow directions of the Registrar.

Once a person is taken into Wardship, a member of staff of the office known as a case officer will be assigned to look after his or her affairs. The Committee or his or her solicitor will correspond with the case officer in relation to the management of the Ward’s affairs. The case officer follows any directions which the President of the High Court may give.

Property and finance

Once a person is made a Ward of Court his/her assets are brought under the control of Court for his/her benefit. The payment of bills will be carried out by the Committee who write to the case officer when payments are required to be made.

Other issues which may arise include the ward’s consent being needed for necessary medical treatment, bringing or defending legal proceedings, making a will etc.

Minors

There are a number of reasons why it might be necessary to take a person under 18 years of age into Wardship. The most common situation is where the Minor has been awarded substantial damages by a Court and has special housing or care needs.

A minor who is awarded damages is not necessarily made a Ward of Court. His award could be paid into Court and invested on his behalf until he reaches the age of 18.

The request to have a Minor taken into Wardship is made by lodging a document called a “Summons”, and which is supported by a sworn statement (an “Affidavit”).

The person appointed to look after the affairs of a Minor who has been taken into Wardship is called a “Guardian”.

The Office of the Wards of Court have produced a handy booklet about wardship which you can download here.