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What is a power of attorney?
A PoA allows you to give temporary authority to someone else so that they can make decisions and act on your behalf. You may want to use a PoA if you are not physically available but something important needs to be done or in case you are not of sound mind anymore and need someone to act on your behalf.
When you create a PoA, you become the “donor” of the power and the receiver becomes your “attorney”. The actions that the attorney may take on donor’s behalf can be as the donor like and may also relate to just one part or the whole of your personal, business or financial affairs.
What are the different types of power of attorney?
There are two types of it:
- General power of attorney
- Enduring power of attorney
A general power of attorney gives either general or specific power to the attorney and it terminates as soon as the donor becomes incapacitated.
An enduring power of attorney is a legal document that takes effect when you are no longer in a state of mind to make your decisions. Your attorney may grant powers under an enduring power of attorney relating to your property, finances or personal care decisions.
About this document:
With this document, you have complete flexibility as to whom you nominate for your attorney, the powers that you grant, how they should be used and over what time period. You can also specify any matters over which you don’t want the attorney to have power. For example, you may want your attorney to control all but one bank account while you are abroad.
You can have more than one person who act jointly as your attorneys.
One of the features of this document is that it is created for a defined period of time, not indefinitely. Depending on what you specify in the document, it can either take effect as soon as it is signed or at a point in the future, so you could draft it now for use later.
If you need to cancel the document before its expiry date (called revoking in legal jargon), you can do so using a deed of revocation.
We have a version of this document tailored for when you wish for someone else to have power to sell your property.This is a special power of attorney.
When to use this document:
You can grant powers if you are over 18 years of age and have mental capacity.
The attorney must also be over 18 years old and not be an undischarged or interim bankrupt. You can only grant this for actions that you already have the right and capacity to carry out yourself. You can’t use it to allow the attorney to make decisions about your welfare. Some examples of such situations are:
- You are abroad but need someone at home to execute a sale of your property.
- You are away for holiday but you want to allow someone to pay your utility bills.
- You may want to have your pension collected.
- You want to allow an expert of a subject to act on your behalf (for example allowing an estate agent to negotiate buying a house for you).
- You may need to have your bank accounts managed.
- You can allow someone to make important decisions about your business
- You have to collect debts from people who owe you money but due to your busy schedule, you are not able to get around it. You can appoint an attorney to collect the debt on your behalf.
- You can allow an attorney to give appropriate gifts to your friends and family.
Features and contents of this document
- Flexible to suit all situations, whether business or personal
- It can be used by anyone over 18 years old
- Use it to appoint one or more attorneys
- Easily sign the document as deed
- Allows you to provide full details of donor and attorney(s), date of revocations and the specific powers you can allow to the attorney.
The law in this document:
The relevant legislation in Ireland, the Power of Attorney Act 1996 regulates the creation, validity, registration and revocation of power of attorneys and this document is made in compliance with section 16 of the Act.
Do I need to register this PoA?
No, you do not need to have this document registered. It will be effective automatically but do remember that it will be invalidated as soon as the donor becomes incapable of managing his or her own affairs due to subsequent mental incapacity. It is good practice to have the document attested by commissioner of oaths.
Who can I appoint as an attorney?
You can appoint anyone you trust, it could be a close friend, a dear family member (for example, a sibling or cousin) or the donor’s spouse. You must remember that the attorney needs to be someone who is capable and reliable because the decisions he or she makes will affect you directly. By law, you must not appoint an attorney who:
- Is under 18 years of age;
- Is bankrupt;
- Is convicted of fraud
- Is disqualified under the Companies Act 2014
What kind of powers can I grant under enduring power of attorney?
You can grant any powers you want when you are creating enduring power of attorney to manage your affairs when you become mentally incapable to do so yourself.
These can be decisions related to your healthcare or property or finances:
- Who should you live with
- Who can you meet or not meet
- Which treatment should you get
- How to pay for the medical bills
- Make tax returns
- Buy or sell your property
- Pay out of pocket expenses
Not everybody gets a chance to ensure they have an enduring power of attorney in place before something unexpected happens and they are not able to manage their affairs. For example, you get in to a car accident and doctor says you cannot live on your own due to your injuries. If a valid enduring power of attorney is missing in this case then it would be extremely difficult for your family to determine what to do. If an enduring power of attorney exists then the attorney will be able to act on your behalf to deal with issues promptly and get you the medical treatment you need.
What is the difference between a general and an enduring power of attorney?
The main difference is that enduring powers of attorney comes in to effect when the donor is mentally incapable of making their own decisions and the general PoA is invalidated when the donor is not in their sound mind. Other than this, an enduring power of attorney also needs to fulfil legal requirements to be valid. These are:
- A medical certificate from a doctor confirming that the donor is no longer in a mental capacity to attend to their own affairs.
- A solicitor must be satisfied that the enduring power of attorney is being granted without any undue pressure or fraud.
- The enduring powers of attorney will not be effective unless it is registered.
- Before registration, you are also required to give notice of your intention to register it. Once the intention notice is given, the people intended to be notified are contacted (listed in the enduring power of attorney) so if they want, they can object to the registration.
The general PoA has no such formalities.
When can I revoke a power of attorney?
A general PoA can be revoked by notifying the attorney at any time. More often, the date of revocation is stated in the PoA. It is also automatically revoked if you die or become mentally incapacitated.
An enduring power of attorney can be revoked before you apply to register it. Even if you become mentally capable, you will not be able to revoke it if it is registered. You will have to claim revocation of the power of attorney in the court. The high court plays a vital role in the revocation of the enduring power of attorney as you need the approval of high court to revoke it. However, an enduring power of attorney is automatically revoked if you die.
Can an enduring power of attorney have multiple attorneys?
Yes, an enduring power of attorney can have more than one attorney.
Does an executor have a same role as an attorney?
No, an executor is responsible for division of your assets as per your wishes when you die whereas the attorney is responsible for making decisions for you when you are alive but are unable to make decisions.
Similar terms for a general power of attorney:
You can also search for this document by using the following terms:
- Ordinary power of attorney
- Power of attorney
Now a retired company director I was generally familiar with poas and this met my requirements admirably and very cost effective too. Reassuring that a review was available too if required - it wasn't on this occasion.
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