I’m one of six children and our parents are both in their early eighties. A number of years ago myself and some of my siblings discussed the idea of an Enduring Power of Attorney (EPA) with our parents, in the case of something happening to one or both of them.
(An EPA is a document that is executed by a person (the Donor) when he/she is in good mental health. It allows another specially appointed person (called the Attorney) to take actions on their behalf if he/she is mentally incapacitated through illness.)
The conversation didn’t include all the siblings as three live abroad and one is on very limited terms with the rest of our family.
But myself and my brother, who both live within an hour or so of our parents, discussed it with the siblings who live abroad in a general conversation about how we could best look after our parents as they get older.
At the time my father had been diagnosed with dementia, but we weren’t too worried as he still had his wits about him.
But he and Mum agreed that maybe we should look at establishing an EPA in the case of his dementia and her ageing.
They both agreed that myself and my brother could be that person, who would have permission to take care of their finances and be in charge of their care if something happened to either of them.
We went to our family solicitor at the time and he advised my parents against it. I think he thought my brother was on some land grab mission! My parents have a small farm that is rented out and they have some cash in the bank.
The solicitor said my father’s dementia was not at issue at the time; he was in charge of his faculties and there was no need for an EPA to be established.
However, over the past 12 months his dementia has really taken hold and it’s really borderline, in my opinion, as to whether he has the mental capacity to OK an EPA or not.
He has become more and more difficult for my mother to handle — he has got quite difficult to reason with.
Things came to a head recently when my mother took a tumble. Luckily she only sprained a wrist, but we initially were worried it was broken.
She’s a physically strong woman and has been able to look after Dad up to now, but if she had ended up in hospital we’d have a situation on our hands.
They don’t have any home help, as they haven’t needed it until now, but it’s something my brother and I have been discussing with Mum.
She’s really independent, and still driving, and is hesitant to have any help, but I think it’s coming to a point where we have to intervene for both their sakes.
They’ve both said they don’t want to go into a nursing home, and that’s not a problem, but myself and my brother need to be in a position to make decisions for them if needs be.
What are our options?
Answer
If someone in Ireland is mentally incapacitated (for example, because of dementia), their assets and property are normally frozen and cannot be used by anyone else unless they are jointly owned or someone has Power of Attorney to deal with them.
An EPA also allows the Attorney to make “personal care decisions” on the Donor’s behalf once he/she is no longer fully mentally capable of making decisions him/herself.
Such personal care decisions can include deciding where and with whom the Donor will live; who the Donor should see; and what rehabilitation he/she should get.
However, if the Donor wants, he/she can specifically exclude any of these powers or restrict the powers granted to the Attorney(s).
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The Donor can appoint anyone they wish to be the Attorney, including a spouse or family member. The Donor can appoint more than one person to be the Attorney, and he/she can also direct that the Attorney is to consult with a person named by them, when making decisions on their behalf.
There are a number of legal safeguards to protect the Donor from an abuse of power by the Attorney(s). Executing the EPA requires consultation with and the engagement of a solicitor and a doctor.
The Donor, via their solicitor, must give notice of the execution of the enduring power as soon as practicable to at least two persons who can object to the Attorney(s) implementing the power if they feel the Attorney(s) are acting prematurely.
The EPA can only come into effect upon the Attorney(s) following specific procedures and obtaining a medical report confirming the Donor is no longer mentally capable of making decisions.
Your father will need to visit his GP, who will carry out an examination to ascertain whether he still has the mental capacity to understand the effect of creating an EPA.
Given your father’s age and illness, in my view, his GP should provide a report to his solicitor confirming he has the requisite mental capacity to give instructions to his solicitor.
The GP will then also have to sign the statement by a medical practitioner contained within the EPA itself when your father is executing it.
If the GP is not satisfied your father would have the mental capacity to understand the effect of creating the EPA, unfortunately, it is too late and your father cannot execute one.
If he holds property in his sole name, it is likely to be frozen and he will have to be made a Ward of Court, which is an application to the court to have a committee appointed to control the assets on his behalf.
If the property is held by your parents in their joint names, then your mother would still have power to deal with it in the event your father cannot — provided she maintains mental capacity herself.
She should make an EPA without delay, and she will also need to attend her GP and her solicitor to discuss further and comply with the requirements set out in the EPA.
You say your parents do not want to go into a nursing home, so the option of you or your brother being appointed their care representative does not apply.
Deirdre Flynn is a solicitor from a farming background and practises in Tralee, Co Kerry.
The information in this article is intended as a general guide only. Deirdre Flynn does not accept responsibility for errors or omissions how so ever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.