Everlasting well being care proxy – assume forward
We have written many times about wills and their meanings to express your wishes. You can read more about our coverage of Wills by visiting www.lynchsolictors.ie/blog.
A permanent power of attorney (called EPA) supplements your will.
An EPA will outline what happens if you become incapacitated and unable to attend to your affairs.
What is a permanent power of attorney?
When someone becomes mentally disabled (for example, due to illness, disability, or progressive degenerative disease), all of their assets and property are usually frozen. This means that family members who want to pay for your care costs will not have access to your bank accounts.
A permanent power of attorney prevents this – it is often referred to as a “living declaration of intent”.
It can be an extremely powerful document. It bypasses the hurdles and problems your family may face while trying to regulate your affairs should you become incapacitated.
It is a legally binding document that avoids the need to make someone a district court.
It appoints one or more people (usually a close family member) to take care of your personal and financial affairs.
It’s important to understand that an EPA is a two-step process and the second step may never come about. The EPO will not come into force until you are no longer able to regulate your affairs.
What are the powers of a lawyer?
When you are thinking about your EPA and choosing your attorney, you also need to consider the scope of the powers that you will be giving your attorney.
There are usually three variations of the authority that you can give your attorney:
Your financial and asset affairs, or;
Your health and personal affairs, or;
All of your affairs (finances, property, health, and personal affairs).
You can give your attorney as much or as little power of attorney as you like, for example:
What to do with your house or investment property
Where will you live
Who are you going to live with
Your diet and clothing
Other very personal decisions that directly affect you and your future care.
It may be advisable to designate another person with whom you would like to consult the attorney so that the attorney can take into account that person’s views.
It is also a good idea to appoint substitute attorneys.
Financial and real estate matters
A general power of attorney gives your attorney a free hand to manage your assets as he pleases, provided that the actions are in your “best interests”.
Also, keep in mind that once your attorney is registered, there is little or no supervision for the time being.
How many lawyers can i have?
You can choose one or more lawyers.
By choosing more than one, you can choose how to make those decisions:
Together – that is, they all have to act together and cannot act separately, right?
Individually and jointly and severally – they can all act together, but they can also act separately if they wish.
Can a lawyer registration be refused?
An application can be rejected if:
The power created by the document is no longer valid
The donor (you) is not mentally retarded or unable to become mentally retarded
The lawyer is not a suitable person to fill the role
Fraud or improper influence has been used to induce the donor (you) to create power
Is there any restriction on who I can appoint?
Permanent power of attorney can be granted to individuals or trust companies, but not:
People under 18
Individuals convicted of offenses related to fraud or dishonesty
Individuals disqualified under the Companies Acts
An individual or trust who owns a nursing home you live in, or an employee or agent of the owner, unless that person is also your spouse, domestic partner, child, or sibling.
Many reasons can justify granting a permanent power of attorney.
You may have a family history of mental illness, Alzheimer’s, or pre-senile dementia. You may be involved in an accident or have an illness that you can no longer take care of yourself.
The most obvious reason, however, is that we don’t know what is ahead of us.
If you don’t have an EPA, you have no one to carry out your desires the way you want. When preparing an EPA, you should also take the opportunity to review your will. If you do both, we also encourage you to consider any future planning needs for you and your family.