At Miley & Miley LLP, we understand that the process of establishing an Enduring Power of Attorney can seem daunting. Below are some frequently asked questions that may assist.

What is an Attorney?

An Attorney in this instance is someone you choose to make decisions on your behalf if you are no longer able to do so in the future. It is important to think carefully about the person(s) you choose to appoint as your Attorney. They should be a close family member or someone you trust. Depending on the powers you give to your Attorney they will be able to make decisions on your behalf in relation to your general welfare, property, and affairs. You can of course limit the powers you give to your Attorney(s). Generally, we recommend that you give your Attorney(s) a general power over your general welfare and property and affairs unless there is/are particular reasons not to do so. We can of course discuss these reasons or any concerns you may have.

Should I give a general power or limited powers to my Attorney(s)?

If you give a general authority to your Attorney(s) it will enable them to deal with all institutions, be they banks, hospitals, nursing homes etc. on your behalf and the general authority will satisfy all of these institutions as to your Attorney(s) authority to enter into agreements on your behalf and for your benefit. As you will be appointing someone you trust as your Attorney, we would advise that a general authority should be given as this will create less obstacles for your Attorney when interacting  with institutions and/or service providers on your behalf.

This is a decision for you to make as the Donor .If there are any specific powers you would like to provide to your Attorney(s) this can be included in Enduring Power.

Should I pay my Attorney(s)?

You can make a provision for payment to your Attorney(s) in relation to the work they will be obliged to conduct on your behalf when and if the Enduring Power of Attorney is ever activated. If you wanted to pay your Attorney(s) you must specify how much you want to pay them and in relation to what functions or activities the payment should relate to.

Joint/Several Attorney(s)/Alternative Attorney(s)

If you appoint two or more Attorneys, you can authorise them to act jointly or separately.  If you want them to act jointly this means that both Attorneys are required to confirm any of the decisions you have given them the power to make.

If you appoint your Attorney(s) to act jointly and severally i.e. jointly and separately this means that your appointed Attorneys can make decisions on their own or without the agreement of the other appointed Attorney.

You are also able to appoint an alternative Attorney(s) if one or all of your initial Attorney(s) are not in a position to act. We recommend that you appoint an alternative Attorney(s) especially if your initial Attorney is of a similar age to you.

You are also able to specify whether your Attorney(s) are to act jointly in respect of some decisions and/or jointly and severally in respect of others.

Notice Parties/Functions

You and your Attorney(s) must notify certain people that you are making the Enduring Power of Attorney. These people are called your Notice Parties. The following people must be notified that you are creating an Enduring Power of Attorney, and these are:

• Your spouse, civil partner, or cohabitant, if any,
• your children (including stepchildren), if any (if they are 18 years of age or older),
• the Attorneys appointed in this Enduring Power of Attorney application,
• any other decision supporter you have.

Note: If you do not have at least three people from the list of mandatory Notice Parties above, you must also notify two other people you know, such as friends, family or professionals such as your doctor or lawyer.  For example, the person who signed your Statement of Capacity or legal practitioner statement can also be a Notice Party.

Activation of Enduring Power of Attorney

The Enduring Power of Attorney will not come into force and the powers given to your Attorney will not be activated until you are incapable of making one or more of the decisions provided for in the instrument creating the Enduring Power of Attorney and this is verified by a medical practitioner.

The Attorney(s) are then supervised by the Decision Support Service (DSS) and must send a written report to the DSS every year. These reports include details of big decisions taken as part of the arrangement, transactions made on your behalf and any expenses or payments claimed by the Attorney(s).

For further information on setting up an EPA please contact Michael Heslin who has extensive experience in this area.