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 execution, up until some potential future loss of mental capacity.

In many respects an Enduring Power of Attorney is a form of insurance against future loss of mental capacity.  The consequence of not having an Enduring Power of Attorney in place is that should mental capacity be lost, those caring for the person may have extreme difficulty in organising that person’s affairs.  Considering the prospect of a potential loss of mental capacity is at best unpleasant.  However, no matter how healthy the individual, it is prudent to have an Enduring Power of Attorney in place to cater for the possibility.

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, Richard Hammond via richard@hgs.ie