Who must sign an enduring power of attorney?

Q&A: Dominic Coyle answers your personal finance questions

Enduring power of attorney is a remarkably powerful instrument effectively giving someone else power to make decisions for a person when they are no longer capable of making those decisions. Photograph: iStock

Enduring power of attorney is a remarkably powerful instrument effectively giving someone else power to make decisions for a person when they are no longer capable of making those decisions. Photograph: iStock

 

I act as an advocate for a lady friend of mine. She is in her mid-50s, single, not in good health, with no relatives to whom she can turn or friends, except me.

She has asked me to be the executor of her will and testament as well as the attorney to her enduring power of attorney (EPA), as she has got nobody else to act in these capacities.

In your column, I have read that an EPA has to be signed by at least one relative. My question is that, as my friend has only got one stepsister but they are totally estranged, where does this leave her. My friend is also estranged from her other relatives.

What is her position with regard to a relative having to sign her EPA?

Mr E.B., Kildare

It is good that this lady has some friends like you capable and willing to help her out. There are many vulnerable people out there and they often slip through the cracks for want of a bit of friendly advice or guidance.

Enduring power of attorney is a remarkably powerful instrument effectively giving someone else power to make decisions for a person when they are no longer capable of making those decisions.

And it is precisely for that reason that the rules on how such a power is drawn up and witnessed. For instance, the person looking to set up an enduring power of attorney – your friend – must get both her doctor and her solicitor to sign to ascertain variously that she is of sound mind at the time the document is drawn up and understands the import of what she is doing, and that it is not being done under duress or as a result of fraud.

But there is no requirement to get a relative to sign the form. I’m not sure where you picked this up. I’ve gone back over the various pieces I have written on this topic over the past couple of years to see if I have been misleading folk on it but I can’t see any reference to relatives having to sign the form.

Now what she will have to do is notify two relatives – and, yes, one should be her step-sister regardless of bloodlines or the current state of their relationship.

Object

Importantly, from her point of view as outlined in your question, that doesn’t involve them signing anything: it is simply her (or, to be more precise, the solicitor who is helping her draw up the enduring power of attorney) sending them notice in a form laid down by law to inform them that she has signed an enduring power of attorney and who is/are the proposed attorney(s) should the power need to be activated.

Can they object? Well, yes, in the event her health diminishes to the point that the power is being activated by being registered with the High Court, they will need to be informed and they will have the opportunity to object.

However, they can’t simply say they don’t like you (or whoever the proposed attorney is). The grounds for objection are set out in section 10(3) of the Powers of Attorney Act 1996 and they are: – that the power of attorney is not valid, or is no longer valid, but they would have to show how – for instance, missing signatures, a more recently drawn-up power with different attorneys or powers;

– that the donor – the person who is going to be cared for – is not mentally incapable;

– the attorney is unsuitable for the donor;

– that fraud or undue pressure was used to persuade the donor to create the power.

They have five weeks from the time they are notified that the power is going to be registered – ie activated – to make any objection, should they so wish.

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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