The Gazette 1991

GAZETTE

NOVEMBER 1991

Substitution of attorneys and

delegation of powers.

The donor may of course substitute

attorneys before he becomes

mentally incompetent. The Com-

mission believes that the donor

should be entitled to appoint a

substitute in the power itself and

the court would be empowered to

substitute an attorney in the event

of there not being a full and

competent attorney. Similarly to

ordinary powers, the EPA attorney

would have implied power to

delegate any of his functions which

were not such that the donor would

have expected the attorney to

attend to personally. Any warrant

or power to delegate would have to

be provided for expressly in the

instrument.

Termination and revocation

of EPAs

All the other jurisdictions provide

for mechanisms whereby the court

may terminate an EPA. The donor

would be entitled to revoke the

power at any time until his

imcompetency. The Commission

recommended that the court

should have power to terminate

an EPA only where there was

evidence that the power was not

being operated properly. The

Commission concluded that over-

all the English system was a

suitable one to implement in the

Irish jurisdiction and they so

recommended.

What has been the English

experience? Interested organisa-

tions fo^ the aged see enormous

advantages in EPAs. There are

cheap to administer and enable

donors to plan in advance for

possible senility. Solicitors are

being encouraged to suggest to

clients approaching old age that

they execute EPAs as a matter of

routine, often at the same time as

making a will. Around thirty

thousand EPAs were traced in

1989. Approximately two thousand

were registered in that year. A

typical donor was a woman aged

between 80 and 90. More than

sixty per cent of the recipient

attorneys were related to donors.

The English Court of Protection has

been criticised for being complex,

slow and remote and the English

Law Society has proposed that the

Court be made more accessible

possibly by means of local

tribunals. Another weakness in the

EPA procedure is that no one

knows whether registrations are

taking place when appropriate.

Unregistered EPAs may be per-

petuated long after the donor had

lost capacity. Recently the

London

Independent

stated that "there

was also a clear tension between

operating a system that is simple,

cheap and convenient, and the

need to prevent abuse by self-

interested attorneys or disruption

by officious third parties. No

technical or medical test is applied

to mental capacity on registra-

tion. The donor's attorneys apply

when they themselves consider the

donor to have become inca-

pacitated". The answer is of course

that additional resources will be

needed and an overall examination

of the law dealing wi th the

mentally disabled is required. This

does not however take away from

the immediate impact and relief

that a system of EPAs would

bring to many elderly people in

Ireland.

Conclusion

This LaW Reform Commission

Report is a practical example how

law reform can make a material

difference to the public without

imposing any great cost at a time

of economic stringency. Pressure

from the legal profession to

introduce a system of EPAs would

be viewed by the public in a very

positive way and could only

improve our public relations. Finally,

enduring powers of attorney have

been perceived by many of our

English counterparts as a useful

new source of fee income. Visions

of "Make a Will and an Enduring

Power of Attorney week" should

move the more cynical of our

colleagues.

•

I N D U S T R I A L R K L A T I O N S L A W

M K I I A I l . I O K D i ;

he book is a comprehensive statement of the

legalregimegoverning collective bargaining

and other forms of industrialrelations.These rules

were altered significantly by the Industrial

Relations Act, 1990. The full import of those

changes is dealt with throughout the book.

Matters dealt with include: the legal underpinnings

for collective bargaining; collective agreements

and their enforceability; industrial action — strike,

lock-out, picketing, 'blacking' etc., the new

requirements to exhaust grievance procedures and

resort to secret ballots before striking; public sector

bargaining — rules and procedures governing the

entire process; modes of industrialrelationsother

than collective bargaining; trade unions and their

internal affairs. A very useful appendix provides

the text of the various acts.

ISBN 0 947686 75 4 £39.00

THE ROUND HALL PRESS

Kill Lane, Blackrock, Co. Dublin, Ireland

Tel: (01) 2892922 Fax: 2893072

369