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Have you got a safety net? – Advance Care Planning and EPAs

 

Nobody likes to think about their own mortality. And nobody likes to think about what would happen if they became incapacitated through a stroke, dementia or an accident. However bad this may be, imagine how much worse the situation would be if you had a stroke, serious accident or developed dementia without sorting anything out in advance.

It’s surprising how many people don’t know how easy it is to prepare for such an event by drawing up a legal document, known as Enduring Power of Attorney (or EPA, for short).

With an EPA, you nominate somebody that you trust to look after your affairs in the event that you become incapacitated at some point in the future.

The person that you nominate is called your Attorney. Just to be clear - “Attorney” here does not mean lawyer, it simply means someone that you nominate to act on your behalf, e.g. it could be your wife or son or best friend.

If you become incapacitated your Attorney can make personal care decisions on your behalf - e.g. what care or treatment you should receive, where you shall live etc.

Your Attorney can also deal with your general affairs and finances – e.g. they can use your money to pay your bills, make sure your property is insured, file your tax returns and apply for any benefits that you may be entitled to.

It’s important to note that once the EPA is drawn up, it remains dormant, and it only activated if you lose the capacity to manage your affairs. If this happens, your medical condition must be certified by your doctor and your Attorney must take steps to register or activate the EPA.

The EPA is like a safety-net as it’s something you may never need but having it gives peace of mind.

If you don’t have an EPA in place, then you may have no say in who is in charge of your personal care and financial matters and may end up being declared a Ward of Court.

However, EPAs can only be drawn up while you are of sound mind. This is because it’s essential that you know what you are doing, and that you make a reasoned decision on the matter and choose a suitable Attorney.

Your solicitor must also certify that he or she has fully explained the implications of the EPA to you and that you understand it. Your solicitor may also make inquiries to make sure that nobody is pressuring you into signing anything and that you are happy with your choice of Attorney.

Q:        I’m very worried about my father – he is becoming very forgetful.

A:        Perhaps now is the time to broach the subject with your father about his future wishes and to discuss planning in advance for his care. Your father can contact his solicitor for impartial and confidential advice on drawing up an EPA.

It’s important to do this before your father’s condition deteriorates too much. This is because:

  • The solicitor can only take instructions from your father directly. This is a very strict requirement and is there to prevent undue pressure or influence being put on people by others.
  • An EPA can only be drawn up while your father has the necessary capacity to understand what he is doing and to make a reasoned decision on the matter. For an EPA to be valid, your father’s doctor will need examine your father and to verify in writing that he currently has the capacity to draw up an EPA.
  • If it is left too late and your father’s health has deteriorated to such an extent that he cannot draw up an EPA then the only way to manage his affairs may be to have him made a Ward of Court, with a committee appointed by the Court to manage his affairs.

Q:        Who should I choose to act as my Attorney?

A:        The most important thing here is trust: your Attorney needs to be somebody that you trust to make decisions for you when you cannot. The person should be reliable and should have the skills to carry out the role. It’s also important to discuss this with the person in advance - before they accept the role – and give them an idea of your expectations. Communication is key.

It’s up to you to nominate a person of your choice as your Attorney. Usually it is a relative, but may also be a trusted friend, or a professional, such as an accountant or a solicitor.

Q:        If I draw up an EPA am I giving away control of my affairs?

A:        No. When you draw up an EPA it remains dormant and life and your affairs carry on as normal.

It’s only if you lose capacity that the EPA can take effect. In order for it to take effect two things must happen:

  1. Your doctor must certify that you suffer from a medical condition that has caused you to lose capacity.
  2. Your Attorney must register the EPA with the High Court.

These are safeguards that are there to prevent people being taken advantage of.

Q:        Are all my assets transferred into my Attorney’s name?

A:        No. If you lose capacity and the EPA is registered your assets remain in your name but your Attorneys have the power to deal with them, as your agent. In fact, your Attorneys have a duty to keep your property separate from theirs.

Your Attorneys also have a duty to keep full accounts of your property and affairs and must produce the accounting records to the High Court if required.iHi

Q:        Are EPAs only for old people?

A:        No. Unfortunately, tragedy can strike at any age. Couples with young children often decide to make Wills, to provide for what will happen in the event of their death, but rarely think of what would happen in the event of a serious illness or accident. Sadly, sometimes incapacity comes without any warning.

Often we get a call from relatives of an incapacitated person because there is a problem with the bank – perhaps bills need to be paid and nobody can access the account. The trouble is that if a person no longer has mental capacity then their bank will only deal with an Attorney under an EPA or the committee of a Ward of Court. This can cause a huge amount of stress and confusion among the families of those concerned. 

It is very reassuring and comforting to know that you have an EPA in place – its like having a safety net you hope you never have to use.



Michael Powell Solicitors

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We are strategically located in Cork's Central Business District opposite City Hall and adjacent to the Clarion Hotel.  There is on street disc parking or the Clarion Hotel Car Park.

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