An Enduring Power of Attorney (or “EPA”) is a legal document by which the person making it (known as “the Donor”) states that another person (known as “the Attorney”) will in the future have power to act on the Donor’s behalf if the Donor becomes unable or incapable of looking after his or her interests. It can be changed by the Donor or revoked by the Donor during the Donor’s life. It comes to an end on the death of the Donor.
By creating an EPA, a Donor gives considerable responsibility and control to the Attorney.
Accordingly, any person contemplating creating an EPA should be extremely careful in how they set up their EPA, in particular with regard to any conditions and restrictions might wish to apply to the powers you are giving to your Attorney.
It is important that a potential Donor obtains legal advice from a solicitor with experience in setting up EPAs.
A new system for creating EPAs was set up under the Assisted Decision Making (Capacity) Act 2015 and commenced on 26 April 2023. This replaced the previous system regulated by the Powers of Attorney Act, 1996. EPAs set up under the old system are still valid but, since 26 April 2023, all new EPAs must be created under the new regime.
Why is an EPA useful?
An EPA will allow you to appoint a person you know and trust to act on your behalf if you lose the capacity to make certain decisions in the future, as a result, for example, of brain damage, Alzheimer’s disease, or dementia.
This person is called your ‘Attorney’ but does not need to be a lawyer.
The decisions can be about your personal welfare and property and money matters.
You can give your Attorney the general authority to act on your behalf about all or part of your property and affairs and personal welfare. Alternatively, you can give your Attorney the authority to do specific things on your behalf.
You can have more than one Attorney and you can choose a replacement Attorney in case one of your Attorneys is unable to continue in the role. If you have more than one Attorney you will have to decide if they are to make decisions together, or separately.
Making an EPA
There are a number of steps involved in making an EPA. Before you begin the application, there are a number of matters you should consider with the advice of your solicitor and in consultation with people you trust. You will need to decide:
• Who do you want to act as your Attorney or Attorneys?
• Do you want someone to be your replacement Attorney?
• What types of decisions do you want them to make on your behalf?
• Are there any decisions you do not want or need help with?
• What authority do you want to give your Attorneys?
• Do you want to pay your Attorneys?
• Are there any organisations, businesses or professionals that will want to see a copy
of your EPA?
Once you have decided these matters, you create the EPA in consultation with your solicitor and medical practitioner, choosing one or more Attorneys and the decisions they will make on your behalf.
The EPA must be signed by you, your Attorney and two witnesses. It must include details of the authority you want to give your Attorney.
The EPA must then be registered with the Decision Support Service (or DSS) while you have capacity and within 3 months of its creation.
Bringing an EPA into effect (known as “Notifying an EPA”)
The EPA only comes into effect if and when you lose capacity to make any of the decisions set out in your EPA.
At that stage, your Attorney notifies DSS of our incapacity and asks them to bring it into effect. This is called “Notifying an EPA”.
Your solicitor will be able to assist your Attorney with the various steps they will need to take to notify the EPA.
It will include getting forms completed by different people, including the Donor's doctor or another healthcare professional.
Cancelling an EPA (known as “Revoking the Arrangement”)
You can cancel your registered EPA if it has not been brought into effect and you have capacity to do so.
The EPA must be cancelled in writing and signed by you and two witnesses.
An Attorney can resign from a registered arrangement before it comes into effect by notifying you and DSS that they wish to do so.
If the EPA has been brought into effect, the Attorney can only resign with the consent of the court.
Changing an EPA (known as “Varying the Arrangement”)
You can change your registered EPA if it has
a) not come into effect, and
b) you have capacity to do so, and
c) it has been registered for more than six months.
After that, you can change it once every year.
Any changes to the EPA must be made in writing and signed by you and two witnesses.
What does it cost?
The fees payable to the DSS are as follows:
Registering an EPA €30
Changing an EPA €30
Revoking an EPA €90
Notifying an EPA €90
If you have already made an EPA under the Powers of Attorney Act 1996 (which applied to EPAs made prior to 26 April 2023) and you intend to revoke it in order to register a new EPA, you may be entitled to have your fee for registration and notification waived.
Your solicitor will furnish you with an estimate of their fees for work done assisting you to create and register your EPA and in giving a statement to the DSS confirming that you understand the implications of making the EPA.
Your doctor will also charge a fee for providing the necessary medical certificate that you have capacity to enter into the arrangement.
See or next blog post containing specific information about creating an Enduring Power of Attorney