Safeguard for anyone who has financial assets in their name or jointly

Legal advice for farmers

About 55,000 people in Ireland are living with dementia. Creating an Enduring Power of Attorney sets out who will take our place to manage our affairs should we become mentally incapable.

The topic of Enduring Power of Attorney has been explored here on many occasions in the past.

But its importance cannot be overestimated. It is a safeguard for anyone who has interests in land, business or other financial assets in their sole name or jointly with another.

It sets out who will take our place to manage our own affairs should we become mentally incapable of doing so ourselves in the future.

It may be of more importance to those of us who live alone and have no close relatives who can take care of us if the need arises, pay our bills, or liquidate our assets to fund medical care.

Mental capacity can be lost due to many factors, and it is not limited only to elderly people as is commonly thought.

People in their 30s or 40s can suffer from dementia.

A car accident, stroke or brain injury can also render any of us mentally incapable.

Interestingly, according to figures released by the HSE, women account for two-thirds of all dementia cases in Ireland. About 55,000 people in Ireland are living with dementia at the moment, a number which is likely to double by 2036!

The loss of mental capacity of a family member, friend or relative can be devastating, and if there is no Enduring Power of Attorney in place, it can be very difficult to fund ongoing care for your loved one.

It is time to state some facts about an Enduring Power of Attorney.

The person creating this document is called a Donor.

At the time of creation, the Donor needs to be rendered mentally capable of understanding the nature of the document they are signing.

The position has to be confirmed by a solicitor acting for the Donor, and a medical practitioner, both of whom need to certify the position independently.

The Donor must appoint an attorney(s) to act. It is important to take great care when nominating someone to act as your attorney.

You need to feel confident that the person you chose will act in your best interest.

The attorney will have onerous duties and will be entrusted with powers to act in your interest.

That said, you can appoint whomever you wish, including a spouse, civil partner, family member, friend, colleague, or professional advisor. There are certain restrictions on who may not act as attorney, for example, minors or bankrupts.

The powers given under the document can be restricted or wide-ranging, depending on the personal requirements.

A common misconception is that once you sign the document, it is irreversible and we are stuck with the choice of people we appointed as our attorney(s).

That is not the position.

Under the Power of Attorney Act, 1996, as long as you, the Donor, are rendered mentally capable and certified accordingly by a medical practitioner, the Enduring Power of Attorney can be revoked at any point.

It is important to note that the document does not come into effect until you, the Donor, are certified to be mentally incapable of managing your own affairs.

At that point, the document needs to be registered by your attorneys for them to have the legal power to act on your behalf and, if necessary, to deal with your assets, should the need arise.

Like with your will, once you have mental capacity, you can revoke or amend the document at any time during your lifetime.

We all want some control over our lives, and with the Enduring Power of Attorney in place, you ensure the right person will step into your own shoes if you no longer can manage your own affairs.

• Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
• Email: [e-mail] Web: www.walshandpartners.ie