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GAZETTE
NOVEMBER 1991
Old Age and Enduring Powers
of Attorney
At 75, Mary, single, diabetic and living alone, was becoming
increasingly forgetful and frail. Last Autumn, she suffered several
falls and had spells in hospital and frequently failed to recognise
familiar people or understand what was going on. By Christmas
it was obvious that she could not manage alone and social workers
arranged for her to enter a nursing horns Earlier in the year, you
had, as the family solicitor, drafted a will which was executed by
Mary. At the time Mary's nephew had asked you about the
possibility of Mary becoming increasingly senile and he wondered
whether a power of attorney or some such document could be
prepared so that he could handle her affairs if she became mentally
incapable. You pointed out that in Irish law a power of attorney is
revoked automatically by insanity. Ybu have just now been consulted
by the nephew and have been explaining to him the difficulties and
expense involved in wardship.
If the Oireachtas enacts the Law Reform Commission Report on
Enduring Powers of Attorney (LRC 31-1989) the above scenario
could be completely altered. Ireland is one of the few common law
jurisdictions not to have reformed its law to allow for these enduring
powers.
Power of attorney
A power of attorney is a document
which appoints a person, called the
donee or attorney, and invests him
with power to act either generally
or in a manner specified on behalf
of the person who gives the power,
called the donor. The law in this
area is of common law origin and
is regarded as a branch of the
general law of agency. Solicitors
will be familiar with the situation
where a donor is going to be absent
from Ireland and gives a power for
the purpose of sale of property or
the management of an investment.
Power of attorney can of course be
granted when the donor is not
leaving the country but simply
wishes to appoint somebody else
to look after a particular transaction
on his or her behalf.
At common law it is necessary for
a donor to create a power of
attorney by executing a deed. An
Instrument creating a power and
which provides that the donor
cannot revoke the power within
twelve months from the date of
coming in to effect may be
deposited in the Central Office of
the High Court and memorials of
such instruments may be registered
in the Registry of Deeds under the
Conveyancing Act, 1881. That Act
also authorises an attorney to
execute documents in his or her
own name as well as in that of the
donor. At common law a power of
attorney is revoked automatically
by certain events i.e. the donor's
death, insanity, marriage or bank-
ruptcy. It is also revoked on the
expiration of the time for which the
instrument was created or on
completion of the specific trans-
action for which it was created.
Wardship procedure
At the present time a person who
would like to deal with the poss-
ibility of his or her becoming
incapable of managing his or her
affairs may only hope that arrange-
ments will be made in due course
to have him or her made a ward of
court. The wardship procedure is
contained in the very old Lunacy
Regulation (Ireland) Act, 1871. A
person called a committee is
appointed to look after the person
of the ward while the President of
the High Court takes charge of the
property of the ward. In practice, a
manager may be appointed over
Ciaran O'Mara
By
Ciaran A. O'Mara.
BCL Dip El
any trading or business concern to
which the ward is entitled but there
is no active management of any
investments of the ward. A
Committee may not deal in equities
and has no power to actively
manage an investment portfolio.
Wardship involves a petition to the
President of the High Court and
requires medical evidence of total
incapacity from two doctors and a
medical visitor and service of
such evidence on the prospective
ward.
As the proportion of the population
in the older age group increases,
more people are likely to survive
and become senile or develop
Alzheimer's disease. The wardship
procedure does not seem to be
appropriate for modern conditions
for many people of ordinary or
modest means and there is a
pressing need to reform the law on
the lines of the Law Reform
Commission Report.
Features of Enduring Powers
of Attorney (EPAs)
The Law Reform Commission was
concerned to strike a balance
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