The Gazette 1991

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.

Ciaran O'Mara

By Ciaran A. O'Mara. BCL Dip El

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

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 367