How can I be sure an enduring power of attorney will follow my wishes?

Q&A: Dominic Coyle answers your personal finance questions

Enduring power of attorney  is a phenomenally powerful document. Photograph: iStock

Enduring power of attorney is a phenomenally powerful document. Photograph: iStock

 

I am a widower in my late 70s and thankfully in full health at present. But I can foresee what the situation may be in the future. To some extent if one was to develop dementia, it probably would not matter within reason whether one was in a nursing home or wherever? However if one was fully lucid but developed a serious illness, could one be bundled into a nursing home against one’s will?

There has to be a question about the pros and cons of people such as myself granting someone power of attorney over myself? While understanding that the granting of power of attorney is a precaution against future loss of “compos mentis”, who decides and when can they decide to exercise the power of attorney and pack you off to a nursing home? Would they have to get say a doctor or solicitor to approve a power of attorney decision?

Does the person granting the power of attorney have the right at any time to countermand the action of the attorney(s)?

Given the recent case highlighted in your column, it would appear that if one has a number of children, it would be best to include them all in the grant of power of attorney as a means of making sure that all participate in the “attorney” decision-making and hopefully keeping your best interests to the forefront.

I presume one could appoint one’s solicitor as your attorney but is there any way of ensuring that s/he will always act in your best interests?

So is appointing an attorney a good or necessary idea? I expect most people operate without appointing an attorney.

Finally,you used the term “enduring power of attorney”. is that just the legal terminology as compared to just using “power of attorney”?

Mr M.C.,email

There’s an awful lot there but I’ve included the lot as the issues you raise are precisely the sort of questions people do, and should, ask before they sign an enduring power of attorney. This is a phenomenally powerful document. You are effectively giving someone potentially full power over how you shall live your life if you lose the mental capacity to make decisions for yourself. It is quite correct that people should take time to reflect on whether to do so and, if so, whom should have the power.

I guess the first thing to address is your concern that someone could, in your words, “bundle” you into a nursing home against your will in the event of you developing a serious illness but still being fully lucid.

They can’t. That’s black and white. An enduring power of attorney can only come into force, if a court it satisfied that you no longer have the mental capacity to make decisions for yourself.

As long as you are mentally alert, regardless of how serious an illness might be, no court would sanction an approach to “register” an enduring power of attorney.

And while we are discussing courts, let’s clarify who decides they can, again in your words, “pack you off to a nursing home” and when.

To be activated, an enduring power of attorney must be registered with the Office of the Wards of Court, an office of the High Court. When is this done? When the nominated attorney “has reason to believe that the donor is or is becoming mentally incapable”.

And how is that done? As you suspect, they would need to get a doctor to certify that you were indeed mentally incapable of making decisions for your own care, or becoming so. Most typically, this would be your GP, who would have initially certified you were mentally capable when the document was first drawn up and signed.

Disability

This is not a humdrum decision. It is entirely possible to have reduced mental capacity and still be able to manage your own affairs. The doctor and the court must be satisfied that the disability is such that you cannot make personal care and financial decisions for yourself.

The nominated attorney must also notify the “notice parties” listed in the enduring power of attorney document – generally close relatives. They have five weeks to object to the registration of the power, or some element of the process.

Does the person granting the power of attorney have the right at any time to countermand the action of the attorney(s) ?

This is an interesting one. Certainly before it is registered, there is no issue with the person revoking an enduring power of attorney that they have previously signed. It gets more complicated when the power has been registered by the court. In that case, even if you are mentally capable, you cannot simply revoke it. Revocation would require a full application to the court and a hearing.

And, no, you cannot simply countermand a decision by an attorney to, for instance, move you into a nursing home, once the power has been registered.

So now to the real nub of the question. Who to appoint to such a position? A child? More than one? All your children? Someone else entirely? Your lawyer?

You cannot appoint the solicitor who has certified in the document that you understand the process and are free from oppression. Other than that, you can choose.

The main thing is that you appoint someone or some people who know what you would wish and whom you trust to carry out those wishes even when you can no longer do so for yourself.

You can determine that they must act jointly in all decisions or that they can act “jointly and severally” – ie together or individually. That choice is made in the document.

You can also limit the choices they have, especially in relation to personal care decisions such as where you should live, whom you should see, your diet and even what you wear. Your solicitor should explain all this clearly when you are drawing up the document.

You can also stipulate that your attorney(s) consult with other family member son decisions, if you wish. And you can set down who you would like to take over as attorney if your first choice(s) are unavailable – maybe because they fall ill between the document being drawn up and the need for it to be registered.

Bear in mind, an attorney must be over 18, not a bankrupt nor convicted of fraud or dishonesty, not disqualified as a company director and not the owner or agent of a nursing home that you are living in at the time.

Essentially, you have a huge amount of control about whom you ask to do the job and how they do it ...up until the point at which the court registers the power and decides you are no longer compos mentis.

And what’s the different between a “power of attorney” and an “enduring power of attorney”? Well, the most basic one is that only an enduring power of attorney can have force after you become mentally incapable. An ordinary power of attorney lapses in those circumstance. The ordinary power only grants someone the right to make certain decisions for you while you are compos mentis – for instance, depending on the range of powers you grant, it could cover that situation where you were ill but still compos mentis.

Finally, is it a good idea? I believe it is though it needs careful consideration. Without a power of attorney, those close to you have no authority to make decisions for you. And, in that case, you will likely be made a ward of court and someone else will make those decisions on personal care. Is it likely they would know your wishes any better than a personally chosen attorney or attorneys?

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice.

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