Notes on duties of Attorneys under an Enduring Power of Attorney ( “ EPA”)
The Attorney should always bear in mind the following points:
- In certain circumstances, a person will be disqualified from acting as an attorney – for example, where the attorney is a spouse and there has been a subsequent annulment or dissolution of marriage (section 5(7), Powers of Attorney Act 1996, as amended by section 50(a) Family Law (Divorce) Act 1996), minority, disqualification under the Companies Acts or a connection with the nursing home in which the donor resides.
- The scope of the authority given in the EPA and the fact that the EPA does not come into force until it has been registered, but that the attorney may take certain actions/ decisions pending registration once an application for registration has been made. If the scope of the authority includes personal-care decisions, consider what decisions can be made, and if the EPA provides that any other party be consulted.
- The requirement to act ‘in the best interests’ of the donor in making personal care decisions. This includes having regard to the past and present wishes and feelings of the donor, facilitating the donor’s participation as fully as possible in any decision, and consulting with persons caring for the donor or interested in the donor’s welfare. The concept of best interest also involves considering whether there is an alternative method of obtaining the same result, which would be less restrictive of the donor’s freedom of action.
- Where the scope of the authority permits the attorney to decide where the donor may live, the attorney should seek advice, both legally and for the donor, of considering whether the donor should change residence from their home to a care facility, including the need for the attorney to seek relevant medical and legal advice (and to consult with named individuals, discussed below).
- The requirement to keep accounts of the donor’s property and affairs and to produce the accounting records to the court if required.
- The requirement, if applicable, to make tax returns in respect of income and capital gains to the Revenue Commissioners on behalf of the donor.
- The requirement to keep the donor’s property separate from the attorney’s property – an attorney is simply an agent of the donor. (The registration of the EPA should be noted on the accounts of the donor held by financial institutions, and the proceeds of the accounts should not be transferred into the name of the attorney.)
- The requirement not to profit from position as an attorney.
- If relevant, the requirement to consult with named individuals. (Even if not required by the EPA to consult with named individuals, an attorney should consider that it is prudent to keep family members generally informed of transactions in relation to the donor’s assets on an annual basis.)
- The provisions in the EPA and the legislation in relation to gifts.
- The provisions in the EPA and legislation in relation to expenses incurred by attorney(s) and remuneration of attorneys.
- The provisions in the legislation and the EPA in relation to the use of the donor’s assets for the benefit of others. (including the attorney) and the limitations of this power.
- The fact that the attorney is in a fiduciary relationship with the donor and that the attorney must use proper care in exercising the authority under the EPA.
- The fact that the attorney may disclaim at any time up to registration of the EPA, and thereafter only on notice to the donor and with the consent of the High Court.
The attorney should also be advised that the court has extensive functions with regard to registered EPAs, which include the cancellation of the registration of an EPA. An example would be if the attorney had become mentally incapable.
If a solicitor suspects that an attorney may be misusing an EPA or acting dishonestly, he/ she should notify the Registrar of Wards of Court. The court may cancel the registration of an instrument – for example “on being satisfied that, having regard to all the circumstances, the attorney is unsuitable to be the donor’s attorney; … on being satisfied that fraud or undue pressure was used to induce the donor to create the power”
In the case of theft or fraud, the gardaí should be notified.
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