The Gazette 1996

GAZETTE

JULY 1996

Powers of Attorney Act 1996

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). 197

by John Costello* Introduction

j 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. ; I Secondly, there was no way in which a person could privately arrange in advance to give someone authority to j 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.