Managing your Affairs in the event of future Mental Incapacity

It is a sad but unavoidable fact of life that many people lose mental capacity.  This prospect is not confined to any one age profile and may affect young or old alike.  The causes are varied (exempli gratia accidents or medical conditions) and while some mental incapacities are temporary, more are permanent.  Upon loss of mental capacity, a person is no longer in a position to look after their own legal/financial affairs or take personal care decisions.  Accordingly, if such decisions are required (exempli gratia sale of an asset to meet the cost of ongoing medical care), a cumbersome application to the High Court is required unless the person who has lost mental capacity previously took steps to organise their affairs. This may be done by putting in place an Enduring Power of Attorney to facilitate the management of legal and financial affairs together with limited personal care decisions in the unfortunate event that at some stage in the future the person loses mental capacity.  It is important to note that the inclusion of a power to take medical decisions is specifically prohibited and cannot be included. The Enduring Power of Attorney appoints a person known as the Attorney to act on the Donor’s behalf.  More than one Attorney may be appointed.   Should the Donor become mentally incapable at some future point in time, then the Attorney must apply for registration of the Enduring Power of Attorney in the Wards of Court Office before they may act on behalf of the Donor. Prior to applying for registration of the Enduring Power of Attorney, the Attorney must give notice in writing of their intention so to do both to the Donor and to other relevant parties and the Donor and these relevant parties notified will then have an opportunity to object to the registration of the Enduring Power of Attorney if they consider that the Donor continues to have mental capacity.  This protection prevents an Attorney from assuming control over the Donor’s property and affairs while the Donor is still fully mentally capable.  Similarly, if subsequent to the registration of an Enduring Power of Attorney, the Donor recovers mental capacity, the Donor may apply to the High Court for an Order cancelling the registration. The Attorney is obliged at all times to act in the best interests of the Donor when exercising their power under the Enduring Power of Attorney and to account for all actions taken.  The power granted to the Attorney may be restricted though this causes some difficulty if a decision is required in respect of which the Attorney has been fettered. Before the Enduring Power of Attorney can be executed both a doctor and a solicitor must certify that at the time that it was executed the Donor understood the nature and effect of putting in place the Enduring Power of Attorney.  Naturally it is vital that the Attorney chosen is worthy of the utmost trust and has the appropriate skills to manage any assets and take personal care decisions The Enduring Power of Attorney does not become effective until it is registered.  It may be revoked at any time up to registration by giving notice of such revocation to the Attorney and other relevant parties.  Thus the Donor, retains complete control of their affairs after...

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Maintenance Payments for Dependent Children

Both parents have a responsibility to financially support their children. In the case of unmarried parents or parents who have separated, one parent usually has custody of the dependent children and looks after their day to day needs. The other parent usually pays money which is called maintenance to the custodian parent to assist with the costs involved of taking care of the children. Paying maintenance does not in itself give a parent access or guardianship rights. Voluntary Maintenance Informal maintenance arrangements can be made between the parents. This will work where both parents are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parents sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties. Maintenance Orders Made By the Court If the parties are unable to agree on the amount of Maintenance to be paid towards the costs involved for the care of the dependent children then an application can be made to either the District Family Court or the Circuit Family Court requesting that an Order be made by the Court directing the amount of Maintenance to be paid. Each party must present evidence of their earnings and details of their expenditure. On hearing the evidence a Judge will make an Order determining the amount to be paid. The maximum amount a District Court Judge can order is €150 per week, per child but this will depend on the means of each parent. If a sum greater that this is sought it will be necessary to apply to the Circuit Family Court. Contributions towards Christmas, the child’s birthday and back to school expenses may also be sought. How long is Maintenance Payable For? Maintenance may be awarded for a child until the child reaches the age of 18, or if the child remains in full time education until the child reaches the age of 23. If the child has a mental or physical disability such that it will not be possible for the child to maintain him or herself then in such circumstances there is no age limit for seeking maintenance for the support of the dependent child. When a Maintenance Order has been made by the Court either party can apply at a later date to have the amount varied. This means the amount could be increased or decreased. If a party falls into arrears with payments when a Maintenance Order is in place an application can be made to the court for an Enforcement Summons to issue against the offending party. How to Apply for Maintenance A solicitor will assist you in issuing a summons seeking Maintenance. Legal advice and representation is very beneficial in these circumstances. Depending on your circumstances you may qualify for legal aid and you should enquire at your nearest law centre to ascertain if you are eligible for legal aid. If your application is approved a solicitor employed by the Legal Aid Board (“the Board”) working in these law centres may represent you or in certain emergency cases or where an applicant is on the waiting list...

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Your Rights In Respect of Faulty Goods

When you purchase an item from a shop you have certain legal rights should the item you purchase be faulty. The Sale of Goods and Supply of Services Act, 1980 provides protection to a person who has a complaint with regard to an item which they have purchased for their own use from a business. These rights have been further enhanced by the Consumer Protection Act 2007. What are the Minimum Requirements? When you purchase an item you enter into a contract with the retailer. If the item you purchase turns out to be faulty, the retailer, not the manufacturer, is responsible to you and must resolve your complaint. The law provides that the item must be of a certain minimum standard of quality unless the defect has been specifically brought to your attention. The item must be fit for the purpose intended. It must correspond with the description on the packaging, be of the measurements as stated and correspond with the quantity as described. Items which are purchased during a sale have the same level of protection as those paid for at the full price. What to do when problems arise  If the item is faulty there are certain steps you can take to have the situation rectified. You should immediately contact the retailer and return the goods promptly. Do not attempt to repair the item or arrange for anyone else to repair it. When returning the item you will need to produce proof of purchase. If you were informed of the defect prior to purchasing the item or if you examined the good and should have seen the defect then in such circumstances you will have no grounds for returning the item. Similarly if you misused or damaged the item, changed your mind or bought the item knowing that it was unlikely to do what you had intended then in such circumstances you will have no recourse. If a retailer advertises that if an item purchased from them is faulty that they will issue a refund or replacement and states that this offer is unique to them when in fact the terms are laid down in legislation, the Consumer Protection Act 2007 states that this is deemed to be a prohibited practice as you are entitled to this remedy under the Sale of Goods & Supply of Services Act.  The 2007 Act provides that a notice may be served on the retailer notifying them of the breach and requesting that they comply with the legislation. What remedies are available? Where the item is deemed to be faulty the retailer may offer a repair, refund or replacement. It is at the retailer’s discretion as to which form of redress they offer. However, if a repair is offered and accepted, then it should be permanent. If the same fault occurs again, then you are entitled to seek refund or replacement. The legislation is now over 30 years old and the Minister for Enterprise Trade and Employment is considering a review of this Act.  This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Hammond Good, Solicitors...

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The Impact of Failing to Register a Letting Agreement with the Private Residential Tenancies Board

The Residential Tenancies Act, 2004 imposed an obligation on Landlords to register each tenancy with the Private Residential Tenancies Board (“PRTB”). The tenancy must be registered by the Landlord within 30 days of the Letting Agreement being signed and the fee to register the tenancy for a Letting Agreement entered into since 1st January, 2011 is €90. If the tenancy is not registered within the 30 days then the penalty for late registration is €180. For multiple tenancies in one building the fee is €375.   In the event of a dispute arising between the Landlord and Tenant, which cannot be dealt with by reference to mechanisms in the Letting Agreement, it is the PRTB who will be contacted and they will decide the outcome after consulting with both the Landlord and the Tenant. Failure to register a Letting Agreement with the PRTB means that you have no rights of enforcement against the Tenant. The Landlord will also be unable to apply for tax relief and or mortgage interest relief on the rented property.   Enforcement by the PRTB   The PRTB has recently intensified enforcement action against unregistered Landlords and unregistered properties. A number of convictions have been secured recently in the District Courts around the country against Landlords for their failure to register their rented properties. The PRTB would have served the relevant notices and warnings on the Landlords requesting that they register their properties with the PRTB and notifying them that failure to do so would result in prosecution. The District Court has imposed fines up to the maximum of €3,000 per letting on the Landlord for his failure to register. In each reported case an Order was also imposed against the Landlord making him liable for the legal costs of the PRTB together with his own legal costs in the matter.   Data Exchange   In the cases which have been reported to date the Landlords came to the attention of the PRTB through data exchange with the Rent Supplement Section of the Department of Social Protection. The PRTB are also now implementing systems to enable them exchange data with other State Agencies and Departments to identify properties and Landlords which are unregistered in order that they may proceed with prosecution.   It is therefore important to immediately register the Letting Agreement with the PRTB to ensure compliance with the Act and to avoid paying the penalty for late registration.   This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Hammond Good, Solicitors for any action taken in reliance on the information contained therein. Any and all information is subject to change. For further information on the subject, please contact the author, Joyce A. Good Hammond, at...

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Access to Grandchildren

An unfortunate feature of many peoples’ lives is to witness the fallout from the breakdown in their child’s relationship with another person.  This can become quite fraught where there are children of the relationship.  In many instances the parents of the children are able to resolve matters between them on their own, or with the assistance of a mediator, or through directions from the court.  Sometimes however, the grandparents’ relationship with the grandchild can be collateral damage in the breakdown of the child’s relationship with the other parent, particularly when that other parent is the primary custodian. Many grandparents are unaware that there is legal recourse available to them in such circumstances.  Nonetheless, while contacting your solicitor for advice might be a good idea, issuing proceeding should be a last resort.  In the first instance ask your child to include some arrangements for contact between you and your grandchild in the discussions with the estranged partner.  If that is not fruitful then try reaching out to the custodian parent to communicate your wish for Access to your grandchild while being careful not to get embroiled in any matter in dispute between the parents.  It may also be helpful to open or keep open lines of communication with the other grandparents.  If communication is not productive the situation might benefit from the involvement of a mediator who will work to assist the parties in bridging the gaps between them. Ultimately, in some situations neither communication nor mediation will resolve the situation leaving recourse to the courts as the only remaining option.  As noted, this course of action should be reserved for the most intractable of circumstances.  Taking a party to court will do nothing to improve interpersonal relations with that party and may involve some expense. Where an application for Access to a child is made by a person other than a parent, the permission of the court to make the application must first be obtained.  This is known as an application for “leave of the court”.  In deciding upon this application the court will consider the applicant’s connection to the child, the risk, if any, of the application disrupting the child’s life to the extent that the child would be harmed by it, and the wishes of the child’s Guardians.  Once this permission has been obtained then the substantive application for Access may be brought.  This mechanism is open to any person who is a relative of the child in question or who has acted in loco parentis to a child (acted in similar standing as that of a parent to the child). The right of Access, is a right of the child rather than the applicant, and the court will at all times be guided by what is in the child’s best interests and depending on the age and maturity of the child may, and in some circumstances must, give consideration to the wishes of the child.  Giving consideration to the wishes of the child is not the same as acceding to the wishes of the child.  The court may deviate from the wishes of the child where it believes that so doing is in the child’s best interests.  These applications are made pursuant to Section 11B of the Guardianship of Infants Act, 1964 (as amended) and may be made...

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Wills – You can’t take it with you!

Wills – You can’t take it with you!

Who Needs a Will? Not one of us can expect to live forever.  However for many of us, the prospect of facing our own mortality and providing for the treatment of our affairs upon our death can be very daunting.  In sharp contrast to the amount of time, energy and creative planning that we undertake when managing our own affairs while alive, each year approximately one-third of the applications before the Probate Offices of the Courts Service are for intestate administrations id est where the deceased person has not made a valid Will. Even for those of modest means a Will is an important necessity.  For enterprising people with a wide variety of financial interests a Will is absolutely crucial.  Regardless of their means it is also vital that parents of young children (under eighteen years of age) have a Will in place which makes provision for the care of their children in the unfortunate event of their untimely death. Without a Will to express how your assets should be distributed, the law of intestacy intervenes to dispose of your assets amongst your relatives in crude set proportions, with the potential to benefit people in a manner that you might not have envisaged. Benefits of Having a Will Intestacies tend to be more expensive to administer, but more significantly, are not amenable to ante or post death tax planning and will not deal with any of the panoply of other issues that you may wish to provide for in your Will.  By making a Will you can express your wishes and intentions rather than having these supplanted by succession law in many important areas including: – The appointment of executors to process your Will, thereby alleviating the administrative burden from distressed and bereaved relatives. The appointment of testamentary guardians to take care of young children. The appointment of trustees to manage the inheritance of any beneficiary of a trust (normally children or people who would have difficulty in managing their own affairs). The provision of a benefit to an unmarried partner who would otherwise be ignored under the rules of intestacy taking account of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The distribution of assets generally to those of your family and friends whom you wish to benefit, where possible in a manner that reduces the amount of your estate lost to the Revenue Commissioners in taxes. The allocation of particular items from your estate that are of tangible or sentimental benefit to specific beneficiaries. The provision of gifts to worthy causes which you support or providing for particular individual circumstances exempli gratia the protection of monies in trust for someone close to you who would have difficulty in managing their own financial affairs. The empowerment of executors and trustees beyond the very limited and narrow powers granted to them under law, to allow them the flexibility to process your estate smoothly exempli gratia post-death tax planning, resolving disputes between beneficiaries, maintaining the operation and value of your business until it is transferred as you have instructed. Will Reviews Most people ought to make a Will and all Wills should be reviewed (though not necessarily revised) at least every three years, or earlier if there is a change in family or personal circumstances, or...

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