Power of Attorney

There are two types of Power of Attorney allowed under Irish law.

1. Power of Attorney

A Power of Attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do). For example, it may allow the Attorney to take a wide range of actions on the donor’s behalf in relation to property, business, and financial affairs. He/she may make payments from the specified accounts, make appropriate provision for any specified person’s needs, and make appropriate gifts to the donor’s relations or friends.

You can appoint anyone you wish to be your Attorney.

2. Enduring Power of Attorney – which takes effect on the incapacity of the donor

An Enduring Power of Attorney enables you to chose one or two person(s) (called “an attorney”) to manage your property and affairs in the event of your becoming mentally incapable of doing so. If you choose more than one attorney you must decide whether they are able to act:

a. jointly i.e. they must all act together and cannot act separately or;

b. jointly and severally i.e. they can all act together but they can also act separately if they wish.

An Enduring Power of Attorney (EPA) also allows the Attorney to make “personal care decisions” on the Donor’s behalf once he/she is no longer fully mentally capable of taking decisions him/herself. Personal care decisions may include deciding where and with whom the Donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the Donor wants, he/she can specifically exclude any of these powers when setting up the Power of Attorney or can make the Attorney’s powers subject to any reasonable conditions and restrictions.

 

Where a person (“the donor”) has put in place an Enduring Power of Attorney (EPA) naming one or two person(s) as his/her Attorney therein and the donor subsequently is deemed to be mentally incapable of managing their affairs by a registered medical practitioner it is then necessary to register the EPA in the Office of Wards of Court of the High Court in order that the attorney may comply with the terms of the EPA in managing the affairs of the Donor.

We are currently offering a legal professional fee of €475.00 plus VAT thereon at 23% plus miscellaneous outlays to put in place an enduring power of attorney.

We are currently offering a legal professional fee of €975.00 plus VAT thereon at 23% plus miscellaneous outlays (such as medical reports and court stamp duty costs (where applicable)) for the registration of the enduring power of attorney. WE would also need to be in possession of the Original EPA.

The above professional fee includes the following work: –

1. Obtain a medical certificate from a registered Medical Practitioner to the effect that the donor is, or where appropriate, is becoming, incapable by reason of a mental condition of managing and administering his own property and affairs.

2. Arrange with you (the attorney) to sign the following forms of notice of intention to apply for registration (a separate form is signed in respect of each notice party) -,

(a) Notice of intention to apply for registration addressed to the Donor

(b) Notice of intention to apply for registration, addressed to the notice parties. (Note Part 1 of First Schedule to Powers of Attorney Act, 1996 as to the order of precedence of entitlement to notice of intention to apply, where notice parties are deceased or otherwise)

(c) Notice of intention to apply for Registration addressed to the Registrar of the Wards of Court.

3. Serve the Donor by registered post with the notice at 2(a) above i.e. Notice of intention to apply for Registration.

4. Have an Affidavit of Service in connection with serving the Notice of intention to apply for Registration on the Donor sworn.

5. Serve the notice parties by registered post with the notice at 2(b) above i.e. Notice of intention to apply for Registration.

6. Have Affidavits of Service in connection with serving the Notice of intention to apply for Registration on the notice parties sworn.

7. Serve notice (by ordinary post) on the Registrar of the Wards of Court of the intention to apply for Registration.

8. Wait for five-week notice period to expire.

9. Arrange for you the Attorney to swear an affidavit grounding the application for Registration setting forth fully the facts and/or circumstances giving rise to the application. (See Order 129 Rule 3 of the Rules of the Superior Courts 1986).

10. File the following documentation (together with affidavits of service at 12 below) with the Registrar of the Wards of Court Office:

(a) Application for Registration of EPA

(b) Original EPA.

(c) Copy Notice of execution by the Donor of the EPA given to the notice parties at the time of the execution of the EPA.

(d) Copy Notice of intention to apply for Registration given to the Donor.

(e) Copy Notice of intention to apply for Registration given to the notice parties.

(f) Affidavit of Service in relation to the service on the notice parties of the Notice of execution.

If there is an objection or if a court application is made, the costs will be greater.

It should be noted that Wardship proceedings are completely different from an application to register an enduring power of attorney although both applications are made in respect of a person who has lost mental capacity.

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A Power of Attorney and an Enduring Power of Attorney both cease on the death of the Donor.

However, it may be difficult to prove that the Donor is dead if his/her body cannot be found, for example, as in the case of a death by drowning. Once the body is found or the Donor is declared to be “believed dead” by a court (usually after seven years have passed), the Power of Attorney (if there was one) ends and their affairs are passed on in the normal way by will or under intestacy law.