IF you become infirm or mentally incompetent, who would pay your bills and taxes, do your banking, decide where you would live, with whom and in what circumstances?

The role of Power of Attorney is a long established one in this country and other jurisdictions and such a person, often a close relative, friend or family solicitor is appointed to help administratively a person, usually elderly, who is no longer physically able to fulfil many of the functions of their daily business, including their financial affairs. The Attorney is named by the client, however, when they are mentally competent and able to understand the consequences of the appointment.

On August 1st, a new law, the Power of Attorney Act 1996, comes into effect in which one of the serious shortfalls of previous legislation is finally addressed to now the Power of Attorney lasted only for as long as the client (called the donor in the Act) was mentally competent. After that the person either became a Ward of Court or because that route was considered costly or inappropriate the person became the unofficial responsibility of relations or the family solicitor. Such arrangements relied on the casual co-operation of banks or building societies.

"Solicitors and accountants have been lobbying for many years to have the law changed, insisting that an enduring Power of Attorney be introduced in order that the person's original wishes be fulfilled, should they become mentally incompetent. The new Act does not over ride existing Powers of Attorney and if someone sets up an enduring Power of Attorney, it will only come into effect when the person shows signs of becoming mentally incompetent."

The new law is a very thorough one, says Michael Murphy of the Dublin Solicitors Bar Association, which has called for the changes for a number of years. Not only does the new Act set out in great detail the role and responsibilities of the Attorney, but it also lays down the method by which the new enduring Power of Attorney is set up. This procedure is designed to ensure that the client fully understands the implications of the appointment and is under no pressure or duress to name the Attorney.

"There are 14 different steps that must be taken in order to set up an enduring Power of Attorney," explains Mr Murphy. "It is more complicated and time consuming than preparing a standard will, for example, and I'm afraid will be more costly." While fees will vary, he expects the cost to be at least £350.00 plus VAT.

A lengthly process of gathering statements of competency and certificates from the client's general practitioner and solicitor must be fulfilled as part of the new process. Also, designated family members (at the very least a spouse, or where there is no spouse, a child) must be informed who is being appointed Attorney, both at the execution and registration stages. This is to prevent any challenge at a later stage.

Involving family members is a crucial feature of the new Act, says Mr Murphy. Solicitors will need to exercise considerable diplomatic skills to steer a Power of Attorney through where certain family members are unhappy with the very idea of an enduring Power of Attorney, or with the choice of Attorney.

The Act is not just about naming a name, however. It sets out different financial restrictions for example, after the client is no longer mentally competent, the Attorney can continue to financially assist or support others who were already being supported by the client, but they cannot, for example give gifts or money to others or themselves which are not of a seasonal nature Christmas or anniversaries. A relative who becomes a person's Attorney is not usually paid, whereas a solicitor or similar professional can expect to be paid a professional fee.

Perhaps even more important is that the new Act allows the person to make provision for the sort of personal care they would like to have after they have ceased to be competent. The Act suggests a scheme whereby the donor can indicate his wishes, such a scheme includes details of

. Where the donor should live.

. With whom the donor should live.

. Whom the donor should see and not see.

. What training or rehabilitation the donor should get.

. The donor's diet and dress.

. Inspection of the donor's personal papers.

. Housing, social welfare and other benefits for the donor.