Introduction
An Enduring Power of Attorney (EPA) is a legal document that allows you to choose someone you trust to make decisions on your behalf if you become unable to do so yourself. It’s a way of preparing for the unexpected — something many people in Ireland are now considering as part of their long-term planning.
Unlike a general power of attorney, which is often used for temporary or limited decision-making, an EPA only takes effect if you lose mental capacity. It’s about protecting your future and making sure someone you trust can act in your best interest when it matters most.
In this article, we explain what an EPA is, how to create one in Ireland, and why it’s one of the most important legal steps you can take to plan ahead.
What Is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal arrangement that allows you to appoint one or more people to make decisions for you if you can no longer make them yourself. This might be due to illness, dementia, or a serious accident that affects your mental capacity.
The person you appoint — known as your attorney — can be given the power to make decisions about your personal welfare, property, and finances. You decide in advance what areas they can take responsibility for, and you can include instructions or limits on what they can do.
An EPA is different from an ordinary power of attorney. A general power of attorney is usually for short-term use and becomes invalid if you lose capacity. An EPA is made while you are still mentally capable, but it only becomes active if you later become unable to make decisions for yourself. This makes it a powerful tool for long-term protection.
Why You Might Need an EPA
No one likes to think about losing control over their decisions. But the reality is that illnesses, age-related conditions, and unexpected events can all lead to a loss of mental capacity. When this happens, managing your affairs can become difficult or impossible without legal authority in place.
An EPA ensures that someone you trust can step in and act on your behalf without delay. They can pay your bills, manage your property, access bank accounts, or make personal care decisions depending on the authority you’ve given them. Without an EPA, your family would need to go through a longer and more complex legal process to get permission to act on your behalf.
Having an EPA in place brings peace of mind. It allows you to choose who will look after your affairs, rather than leaving it up to the courts. It also avoids confusion, conflict, and stress for your loved ones during what may already be a difficult time.
THE EXECUTOR’S ROLE IN APPLYING FOR PROBATE
One of the most significant tasks for the executor is applying for probate. Probate is the legal process by which the executor is granted the authority to manage the deceased’s estate. Without probate, the executor cannot legally transfer assets or settle debts. To apply for probate in Ireland, the executor must submit a series of forms and documents to the Probate Office, including the will, the death certificate, and an inventory of the deceased’s assets.
The application for probate also requires the submission of the Inland Revenue Affidavit (Form SA.2), which details the value of the estate and any outstanding debts or liabilities. Once all necessary documents are gathered, the executor must ensure they are accurate and complete before submitting them to the Probate Office. The Probate Office will then review the application and, if everything is in order, issue a Grant of Probate, which gives the executor the legal authority to proceed with managing the estate.
During this stage, it’s essential for the executor to be meticulous and organised, as delays or errors in the paperwork can prolong the probate process. Once probate is granted, the executor can begin distributing the estate’s assets and ensuring that all obligations are met in line with the will.
Who Can You Appoint as Your Attorney?
You can appoint anyone over the age of 18 to act as your attorney, as long as they are not bankrupt or disqualified. Many people choose a close family member, such as a spouse, child, or sibling. Others might prefer a trusted friend or professional advisor.
It’s important to choose someone who understands your wishes and who you believe will act responsibly. This person will have access to your private affairs and may be called on to make serious decisions, so trust is essential.
You can appoint more than one attorney. If you do, you must decide whether they will act jointly (they must make all decisions together) or jointly and severally (they can act together or independently). There are pros and cons to each option, and your solicitor can help you decide what works best for your situation.
The Legal Process for Setting Up an EPA
Creating an EPA involves several clear legal steps. First, you meet with a solicitor who explains the legal effect of the document and ensures that you fully understand what you are signing. You must be mentally capable at the time you create the EPA.
The EPA document must set out who your attorney(s) are, what powers they will have, and any specific conditions or instructions. You must also notify two people that you are creating an EPA — one of whom must be a close relative. These notices are a legal requirement to ensure transparency.
Once the document is completed, it is signed by you, your attorney(s), and your solicitor. A doctor must also confirm that you have mental capacity at the time of signing. The EPA does not take effect immediately. It must be registered with the Decision Support Service (DSS) when your attorney believes you are no longer capable of managing your affairs.
When Does an EPA Come Into Effect?
An EPA only becomes active — or “enduring” — when you lose mental capacity and it is registered with the DSS. Until then, your attorney has no authority to act. This protects you from any misuse of power while you are still capable of making your own decisions.
If your attorney believes that you have become mentally incapable, they must apply to the DSS to register the EPA. This involves providing medical evidence and informing you and your notice parties. The DSS will review the application and decide whether to activate the EPA.
Capacity is assessed based on your ability to understand, retain, and weigh up information to make a decision. If your ability to make decisions is temporarily impaired — for example, due to illness or medication — the EPA may not be activated until it is clear the impairment is ongoing.
Can You Cancel or Change an EPA?
Yes, you can cancel (revoke) or change an EPA as long as you still have mental capacity. For example, you may wish to remove an attorney, appoint someone new, or update the conditions attached to the EPA.
To cancel an EPA, you must do so in writing and inform your attorney(s) and notice parties. If the EPA has already been registered with the DSS, you must follow the formal cancellation process, which may involve further evidence of your mental capacity.
If your circumstances change — such as a breakdown in relationship with an appointed attorney — it’s important to review and update your EPA. Your solicitor can help ensure any changes are valid and properly recorded. Keeping your EPA up to date is just as important as creating it in the first place.
CONCLUSION
Creating an Enduring Power of Attorney is a simple yet powerful way to protect your future. It ensures that someone you trust can step in and manage your affairs if you’re ever unable to do so yourself. Without it, your family may face legal hurdles that could delay important decisions.
Whether you’re thinking about your health, your finances, or simply planning ahead, an EPA gives peace of mind to you and your loved ones. The process is straightforward, and the earlier it’s done, the better prepared you are for whatever life brings.
At Nooney & Dowdall Solicitors, we help clients across Ireland create Enduring Powers of Attorney with clear advice and professional care. To take the first step, get in touch with our experienced legal team today.
FREQUENTLY ASKED QUESTIONS
1. Do I need a solicitor to create an EPA?
Yes. A solicitor must explain the legal effect of the EPA and confirm that you understand it when signing.
2. Can my spouse automatically make decisions for me if I lose capacity?
No. Without legal authority — such as an EPA — even a spouse cannot make financial or personal care decisions on your behalf.
3. How long does it take to register an EPA?
Registration with the DSS can take several weeks, depending on the complexity of the application and whether any objections are raised.
4. Is an EPA valid outside Ireland?
No. An EPA created in Ireland applies only under Irish law. If you live or own property abroad, you may need legal advice in that country.
5. What happens if someone disputes my EPA?
The DSS will review any concerns or objections before registering the EPA. A solicitor can help resolve disputes or respond to challenges if they arise.
