Ask a solicitor: Can I stop an attorney from wasting my father's money?

There are also a number of safeguards in place to ensure that the power is not abused, writes solicitor Angela O'Connor.

There are also a number of safeguards in place to ensure that the power is not abused, writes solicitor Angela O'Connor.

Dear Angela,

I hope you can give me some reassurance. My father is in his 70s and is in good health save for a bit of arthritis. My mother sadly passed away last year after a long illness. 

My father lives on the farm and still farms alongside my younger brother. My brother has been putting pressure on my father to set up a Power of Attorney and to appoint him as the Attorney. 

I don’t know much about this and am a bit concerned as my brother is quite a domineering character, and I’m worried that he will be able to take control of my father's money and will fritter it away.

My brother, although a nice enough fella, isn’t great with money and has gotten himself into some difficulties in the past, which my parents have had to bail him out of.

Can you please explain what a Power of Attorney is, can I object to it, and are there any safeguards to prevent Attorneys from spending money unnecessarily or unwisely?

Dear Reader,

An Enduring Power of Attorney (EPA) is a legal device that can be set up by a person (the donor) to allow another person (an attorney), to look after their financial or personal affairs, in the event that they have lost capacity to make decisions themselves, either through illness or an accident.

The donor can give a general power to the attorney to deal with all their property and financial affairs and all their personal welfare decisions or they can limit the authority to certain decisions. There can be more than one Attorney, and the Attorney can be anyone, for example, a family member or a friend. However, the Attorney must not be under the age of 18, have been convicted of an offence against you, have been declared bankrupt or have convictions for fraud offences etc.

Applications are made and registered with the Decision Support Service. There is a particular process that must be followed when setting up an EPA. 

There are also a number of safeguards in place to ensure that the power is not abused. This includes having a solicitor sign a statement confirming that the donor fully understands what it is they are setting up and are not acting under any undue influence from others. It also includes getting a statement from a GP that the donor is of sound mind when setting up the EPA.

The making of the EPA must be witnessed by two people, usually a solicitor, but it can be anyone. Also, notice needs to be given to others, in your case to you and any other adult siblings you have. If you are a notice party and you wish to object to the EPA being set up, you can do so to the Decision Support Service. You would need to explain why you have concerns and provide evidence if possible.

If approved by the Decision Support Services, EPAs are simply kept on file, until such time as a donor loses capacity. If/when this happens, evidence from two doctors or healthcare professionals will be needed to confirm that the donor doesn’t have capacity. The EPA would not come into force on the say so of your brother, medical evidence from two sources is required.

The Decision Support Service monitors EPAs. They also keep a register of EPAs.

If the attorney informs the Decision Support Service that the donor has lost their capacity, they must also submit a list of the donor's assets. The Attorney must keep a record of any money paid to them and send this to the Decision Support Service every year. This is a very important safeguard so that the power is not abused.

I hope that this reassures you to some extent as to the safeguards in place to prevent attorneys being able to spend unwisely and unnecessarily as well as your ability to voice an objection to an EPA being set up.

Angela O'Connor LLB specialises in Family Law, Enduring Power of Attorney and Applications in respect of Mental Capacity and Assisted Decision Making and is a solicitor practising in Walsh & Partners Solicitors LLP, 88 Main Street, Midleton, Co Cork.

Email: [e-mail] 

Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, solicitor Angela O’Connor does not accept responsibility for errors or omissions, howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.