An Enduring Power of Attorney (EPA) is a legal document which enables you to appoint a person, known as your attorney, to make decisions for you if you no longer have mental capacity to make those decisions for yourself.
Everyone should have an EPA irrespective of their age or health but it is particularly important if someone is in ill-health or aging. The most important decision when making an EPA is the choice of attorney. If you have made an EPA, it is important to periodically review your choice of attorney in light of your own and your attorney’s current and likely future circumstances.
The choice of attorney is a very important one because EPAs give extensive powers to your attorney to deal with your property, financial affairs or personal care. Once an EPA is registered and in use the attorney will be under little or no supervision.
The decision of who you want as your attorney may seem a daunting one to make however it is vital to make this decision whilst you are able to make the choice. If you lose your mental capacity and have failed to choose your attorney and have not made an EPA, then you may be made a Ward of Court. A Ward of Court is a person who is brought under the protection of the High Court; the High Court will be in charge of your financial affairs, with your day to day affairs being managed by someone known as your Committee, who may be an individual you may never have willingly chosen to manage them.
Top Five Considerations
The most important five practical qualities of your attorney and considerations in making your decision on selecting your attorney are:-
- Trustworthiness. This is the most important trait an attorney must have as an attorney has the potential to make life-changing decisions for you. You must be confident that your attorney will always act in your best interests, make decisions in your best interests only and take the position seriously.
- Responsible. Think about how responsible a prospective attorney is. How responsible are they in their own life? Have they been responsible and attentive towards you in the past? Another aspect to consider is whether they have already, or are likely to have in the future, responsibilities of their own which might limit their ability to effectively manage your affairs.
- Family dynamics. Consider how your attorney will interact with your family, or, if your attorneys are family members, with each other. Your attorney should have the strength of character to withstand pressure from others, especially other family members. Also consider whether there is a potential conflict of interests. For example, is the attorney a co-owner of assets or a beneficiary under your will? If this is the case would they still act in your best interests only?
- Competence. You should be confident that your attorney is competent and comfortable to manage your affairs. Think about how they deal with their own personal affairs, do they manage them carefully and successfully? Do they have the competence to understand and manage your personal, financial or business affairs?
- Age. If your spouse or other prospective attorney is a similar age, older than you, or in ill health, it is possible they may pre-decease you or may become incapable of acting for you. Therefore it is important that you consider alternative attorneys, to either replace them or act with them. Similarly, age is a factor in the case of children: even if they are over the age of 18, they might still be too inexperienced or immature to take on the responsibility of managing your affairs.
What should you do?
A good idea is to play out in your mind how your attorney might practically manage your affairs, or react in different scenarios. Often when people do this they find that what they thought would be the obvious choice may not be the right choice after all. At HOMS Solicitors we have a wealth of experience both in preparing EPAs and in seeing how attorneys deal with them afterwards. Accordingly we are well placed to advise you on your selection of an attorney or attorneys.
If you would like to discuss making an EPA please contact our specialised wills and probate solicitors, Kevin Doughan or Claire Tuohy, on 061 313 222 or via email, [email protected] or [email protected].