Enduring Powers Pre-2023

Table of Contents

Powers of Attorney Act

The Powers of Attorney Act provides for an alternative to wardship. The general principle is that a power of attorney terminates when a person ceases to have mental capacity. Therefore, the traditional power of attorney is of no use in managing the affairs of a person who has ceased to be mentally competent.

The Powers of Attorney Act 1996 allows for the appointment of an attorney to act in relation to a person’s personal care decisions and/or assets, property and resources.

An enduring power of attorney is only effective once registered. It is registered with the Office of the Wards of Court.

Creating a Power

There are significant formalities surrounding the creation of enduring power of attorney. In contrast, an ordinary power of attorney can be created by a simple document.

There is a suggested format for an enduring power which is set out in the legislation. It contains all the requisite requirements, consents and notices.

The creator of a power of attorney is termed a donor. An enduring power is specified to take effect during his subsequent mental incapacity of the person creating it.

The legislation builds in safeguards in relation to the creation of the power. A solicitor must certify that he is satisfied that the donor understands the document and has no reason to believe it is executed as a result of undue influence of fraud.

A medical practitioner must also state that he believes that the donor has the mental capacity (with the assistance of explanations if necessary) to understand the terms of the power and its implications.

Execution of Power

An enduring power must be executed, which requires that it be signed by the donor and the attorney each in the presence of witnesses. They may execute separately. The witnesses need not be the same person. The donor must not witness the signature of the attorney nor vice versa.

As with a will, a power of attorney can be signed on behalf of the donor at his direction and in his presence. In this case, it must be signed in the presence of a third-party witness.

Notice of execution of the power must be given to two persons nominated by the donor. One of them must be the donor of the spouse if living with the donor. If this is not the case, it must be the donor’s child or if this is not the case, a relative.

A relative includes parents, brothers, sisters, stepbrothers, stepsisters, grandchildren, widowers and widows of children or children of brothers or sisters or stepbrothers or sisters.

The Attorney

The person appointed as attorney must be at least 18 years of age and not be bankrupt or convicted of an offence involving fraud or dishonesty or an offence against the person or property of the donor. He must not be a restricted director or a disqualified director.

Provision may be made for the remuneration of the attorney. In the absence of such provisions, the attorney may recover expenses. Similar provision would apply where an attorney proposes to charge for his services.

Joint and several attorneys may be appointed. Where two are appointed they are presumed to be appointed to act jointly. This requires their joint consent. The joint attorney continues to act in the case of the death, incapacity or disqualification of the other.

It is possible for the donor to appoint an alternative or substitute attorney, in the instrument. It is not permissible to permit the attorney the right to appoint a substitute attorney.

The attorney may be a company, only if it is a trust corporation qualified to be an executor. It must have a certain minimum capital and be authorised.

The owner of a nursing home in which the donor resides or a person residing with, or an employee or agent of the owner cannot be an attorney unless that person is a spouse or relative of the donor. An owner includes directors, managing directors, shareholders and such others.

Invalidation of Appointment

An enduring power ceases to be effective on the bankruptcy of the attorney or if the attorney commits any fraud or offence of dishonesty, an offence against the person or property of the donor, becomes bankrupt or disqualified from being a director or becomes owner or controller of a nursing home as above. The power is not invalidated if the donor has appointed one or more persons who are not disqualified.

An enduring power is not to be invalidated or cease to be in for in relation to a personal care attorney appointment unless the attorney has been convicted of an offence against the person of the donor or becomes disqualified as the owner of a nursing home.

An enduring power in favour of a spouse is invalidated or ceases to be enforced if the marriage is annulled or dissolved or a decree of judicial separation is granted, there is a written separation agreement, protection order, barring order, safety order is made against that spouse on the application of the attorney or vice versa.

An enduring power ceases to have effect if in force or is invalidated, if not yet in force, on the exercise of wardship powers by the court, if the court so directs.

Authority Granted

An enduring power may confer complete authority on the attorney either in relation to financial and/or personal care decisions. However, it may also be limited and made subject to such conditions and restrictions as may be applied by its terms.

In the former case, the document authorises the attorney to do all the things which the donor could have done. Enduring powers are most commonly made in wide terms, as it is difficult to foresee all circumstances. The donee of a power may execute deeds on behalf of the donor.

Personal Care Decisions

An attorney may be appointed exclusively in relation to personal care decisions. The default personal care decisions are as follows

with whom the donor should live.
where the donor should live
whom the donor should see and not see
what training and rehabilitation the donor might get
the donor’s diet and dress
inspection of the donor’s personal papers
housing, social welfare and other benefits for the donor

The above does not conclude consent to medical treatment.

Decision Making

The attorney is obliged to make personal care decisions in the donor’s best interest. The attorney must have regard insofar as ascertainable to the past and present wishes of the donor and factors which the donor would consider if he was in a position to do so. He must consider the need to permit and encourage the donor to participate or improve the donor’s ability to participate in so far as possible, in any decision affecting him.

The donor must have regard to (and insofar as practicable and appropriate consult), the views of any person named as someone who should be consulted, in relation to the matters concerned and the view of anyone engaged in caring for the donor or interested in his welfare on the matter of the donor’s wishes and feelings and as to what would be in the donor’s best interest. Provided the attorney acts reasonably in what he considers to be the best interest of the donor, his duty is satisfied.

Accounts a and Fiduciary Duties

The attorney is obliged to keep adequate accounts in relation to the income and expenditure of the donor. He must keep the donor’s property separate from his own.

He must not profit from his position. He is in a fiduciary position and therefore must not take advantage of it. See the sections on the law of trusts and the significance of a fiduciary relationship. In broad terms, a person in a fiduciary position must not take unfair advantage.

Generally, a fiduciary may not undertake transactions with himself or persons connected, even if they are at arms’-length. Unlike the strict rules that apply to agents generally and fiduciaries, an attorney may, to some extent, do some things which are for his own benefit and that of others if the donor might be expected to provide for the needs concerned, subject to whatever conditions are provided in the instrument.

This is subject strictly to his general fiduciary duties of good faith and an attorney must be able to justify any such course to the Office of the Wards of Court and the courts.

If a specific provision is made to such effect the attorney may be subject to conditions, may gift for the seasonal nature or at the time of an anniversary, birthday or marriage to persons including the attorney who is related or connected to the donor.

He may make gifts to any charity which the donor made or might be expected to make provided the value of the gift is not unreasonable having regard to all circumstances and in particular the extent of the donor’s asset.

Revocation

An enduring power of attorney may be revoked at any time by the donor until it is registered. A disclaimer of an enduring power is not valid until notified to the attorney.

If the attorney believes the donor lack capacity to revoke, he may apply for registration. The donor may object to the registration and the court must determine the matter.

The donor must have the mental capacity to revoke. The best practice is that the same procedures and notifications as are undertaken in relation to making an enduring power should apply in respect of its revocation.