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Enduring power of attorney. What you need to know about new legislation

On The Money: It remains fundamentally a means of ensuring your preferences are respected if you no longer have the capacity to make your own decisions

An enduring power of attorney gives you the peace of mind that people you trust will make decisions for you in line with your known preferences if you lose the capacity to do so for yourself. Photograph: iStock

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Dominic Coyle
Fri Apr 28 2023 - 16:44

Old age or infirmity can make people feel very insecure. Part of the reason is that you are more likely to find yourself in a position with very suddenly reduced capacity to retain your full independence and make your own decisions. That is why people are advised to make a will earlier in life.

Less well known, but possibly even more important, is considering an enduring power of attorney. This is a legal document that sets out clearly whom you would like to help you make decisions about your life – everything from where you live and your activities to management of your finances – if you find yourself in a position where you are unable to do so because of reduced physical or mental capacity.

Fundamentally, putting an enduring power of attorney in place is about peace of mind – both yours and that of those close to you.

It is estimated that 55,000 people in Ireland are living with a diagnosis of dementia, of whom close to 38,000 are living at home in one form or another. About 72 per cent of all long-term nursing home residents live with the condition. And the overall figure is projected to increase by 11,000 every year. And that’s before you look at those incapacitated suddenly by heart attack, stroke or accident.

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Without an enduring power of attorney, you are effectively at the mercy of whatever random medical and other people in charge of your care decide on your behalf, so it seems a no-brainer to consider it. We all have family or close friends who will be much better able to help us in those decisions and will be willing to do so.

Just 6 per cent of Irish people have put an enduring power of attorney in place, according to Patricia Rickard-Clarke of Sage Advocacy, which advocates for older and more vulnerable people. An even more modest 4 per cent have made advance healthcare directives which are now formalised under new legislation. By comparison, she said, the figure in England is about 30 per cent.

The stumbling block emotionally is to plan ahead for your potential fragility at a time when you are in the whole of your health. It always seems to be something that can be put off to tomorrow but, as it cannot be done retrospectively, we can run out of those tomorrows all too easily. Once you actually need the care, especially involving your mental capacity for decision-making, your opportunity to dictate its terms are gone.

New legislation that finally took effect this week is designed to reframe the discussion about care to one of working with people rather than making decisions independently on their account. The Assisted Decision-Making (Capacity) Act was actually passed in 2015 but it has taken this long to put in place the necessary support structures to ensure it can change the conversation on care.

Making the decision

Part 7 of the Act deals with Enduring Power of Attorney. To be fair, much of the structure for this has not changed.

You’ll have to provide personal details, including contact details for yourself, your proposed attorneys and some notice parties that we will come to a bit further down.

You choose whether to grant a general (wide-ranging) power over all decisions regarding personal welfare and your financial and property affairs, or you can state what more limited power you want to grant either by specifically outlining what you do want them to have power over or specifically what you want to exclude from the power.

You can nominate one or more attorneys, including replacement attorneys if one or more is no longer available. Where there is more than one attorney acting together, you can determine in your form whether they must act in concert or whether they act jointly and severally, or whether the decision-making is different from one decision to another. Obviously, they need to consent to being attorney nominees.

You will also have to alert at least two notice parties – people other than the proposed attorneys. If your spouse/partner and adult children are not attorneys, they will be among those two; otherwise it can be friends or more distant relatives.

You will need supporting documents from a lawyer and your GP or other doctor to confirm you currently have the capacity to understand what the enduring power of attorney is and that you are not acting under pressure.

This is all as it was. But some things have changed. Most significantly, the scope of enduring power of attorney has been broadened so that it can include healthcare decisions. Until now, these were excluded. However, no one acting under the enduring power of attorney can override decisions that are already subject to an advance healthcare directive, an area dealt with in Part 8 of the Act.

The second key thing is that a new Decision Support Service has been put in place to supervise the whole area. Until now, completed forms for enduring power of attorney were retained by your solicitor and only registered with the court when medical advice supported their activation.

Now they are registered straight away, but with the newly established Decision Support Service that will supervise care and support arrangements under the Act. Medical advice is still required to activate them but that is communicated to the Decision Support Service.

And that brings us to another important change. There is much more of an onus on attorneys to provide accounts of their management of property and financial affairs, as well as key decisions they have made on your behalf and why. They also need to provide statements of your assets and income to the Decision Support Service.

Finally, there are new rules in place giving access to your registered document to certain groups of people via the Decision Support Service on a searchable database once it has been activated. These include solicitors, GPs, healthcare professionals and nursing homes and finance professionals. Others may also be able to get access on application to and at the discretion of the Decision Support Service.

Unsurprisingly there are charges involved, but they’re not prohibitive. Making an initial application to register a power of attorney will cost €30, while activating it down the line will cost a further €90. You will pay a charge of €30 if you want to make changes to the registered document.

More irritating for many, they are keen for the entire process now to be done online with documents downloaded for signature and then uploaded again for filing etc. It’s unclear how this will work, not least as older people might find dealing with this online more tricky (though many won’t).

Changing your mind

In an increasingly mobile world, our circumstances and available support can change. That’s not a reason to put things on the long finger but it is worth remembering that just because you have a document in place, does not mean you might not have to amend it.

Family you expected might be close to hand to help you make decisions if your capacity to do so diminishes may have moved to another country for work or other reasons. Or they may have died. Or the family dynamics have evolved so that it becomes clear that someone other than the nominated attorney(s) might be better placed or suited to the role.

Under the new structures, you can change, or indeed cancel, an enduring power of attorney by contacting the newly established Decision Support Service, but only up to the point where it is activated.

No changes are allowed for the first six months of registering the document, and, in general, you will only be allowed to change it once a year thereafter bar exceptional circumstances. Once activated, changes or cancellation of the power can only be done through the courts.

Any power of attorney already drawn up under the previous 1996 legislation will continue to be valid, though any complaints about its operation or validity will now be handled by the Decision Support Service.

You can contact us at OnTheMoney@irishtimes.com with personal finance questions you would like to see us address. If you missed last week’s newsletter, you can read it here. Also, to ensure you continue to receive On The Money, be sure to add the email address you receive the newsletter from to your safe senders list.