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GAZETTE
JULY 1996
Powers of Attorney Act 1996
by John Costello*
Introduction
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This Act became law on 5 June last
and comes into force on 1 August.
The Act changes the law in relation to I
Powers of Attorney generally. In
addition, for the first time in Irish law,
the Act legalises an Enduring Power
of Attorney, i.e. one which gives an
authority which continues even if the
donor becomes mentally incapable.
Prior to this Art, every power was
automatically revoked if the donor
became mentally incapable. This gave
rise to two major inconveniences.
First, it was often not clear when the
donor became incapable, particularly in
the case of a donor gradually failing
with the onset of old age. The
validity of the power was therefore
frequently questionable.
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Secondly, there was no way in which a
person could privately arrange in
advance to give someone authority to
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handle his affairs, when, at a later date,
he would become incapable. Up to now,
the only mechanism which the law
provided, was an application by someone
else to the Wards of Court office, to be
appointed Committee. That application
was made after the patient had become
incapable and without his having any say
in the selection of the Committee.
General Powers of Attorney:
In relation to general Powers of
Attorney, the Act provides, for the
first time, a specific statutory form
which may be used as a general Power
of Attorney. Alternatively, a similar
format may be used to create a general
Power of Attorney, provided it is
expressed to be made under the terms
of the Act (Section 16).
Enduring Powers of Attorney:
I Under Section 6, an Enduring Power
John Costello
of Attorney (EPA) may give the
attorney power to act on the donor's
behalf, in relation to the following:
(a) All or a specified part of the
donor's property; and/or
(b) All or a specified part of the
donor's business or financial
affairs; and/or
(c) To do other specified things
and/or
(d) To make personal care decisions
affecting the donor; and/or
(e) To make appropriate provision for
the needs of the attorney and other
persons; ánd/or
(f) To make appropriate gifts to any
of the donor's relations or friends
or favourite charity of the donor;
and/or
(g) The EPA may make the attorney's
powers subject to conditions and
restrictions.
Personal Care Decisions:
The Power to give the Attorney the
right to make personal care decisions
affecting the donor is a welcome
additional power which was only
inserted in the Bill at a late stage after
much lobbying principally by the Law
Society and the Dublin Solicitors' Bar
Association. This power is not yet
contained in the equivalent English
legislation.
Personal care decisions must be made
in the donor's best interest and
include making the following
decisions (S.4):
(a) Where the donor should live;
(b) With whom the donor should live;
(c) Whom the donor should see and
not see;
(d) What training or rehabilitation the
donor should get.
Where practical and appropriate the
Attorney should consult with members
of the donor's family or other
interested persons regarding personal
care decision [S.6(7)].
Regulations:
The Enduring Power of Attorney
Regulations (S.I. No. 196 of 1996)
provide for the following in relation to
an Enduring Power of Attorney (EPA):
1. The specific format of an EPA is set
out in the First Schedule. An EPA
creating personal care decisions
only, must be in the format set out in
the Second Schedule.
2. (a) The various options which the
donor has when granting an EPA;
(b) A statement signed by the donor
that he has read the explanatory
information regarding the
creation of an EPA or has had it
read to him.
3. (a) The duties and obligations which
an Attorney may have under
EPA.
(b) A statement signed by the
Attorney that he understands
these duties and obligations.
4. The obligation on the Attorney to
keep adequate accounts.
5. The remuneration, if any, of the
Attorney (who is entitled to out-of-
pocket expenses even if no form of
remuneration is provided for in the
EPA).
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