Legal: how do I set up enduring power of attorney?

Question: I have been encouraged to make an enduring power of attorney as part of drawing up my will. This is to cater for a situation where I became incapacitated and unable to make decisions in relation to my farm. I understand that there have been changes recently to the law and it is more difficult to put one in place.

What is involved in having an enduring power of attorney drawn up? Who should I appoint to make decisions on my behalf? Is it worth going through with it?

Answer: Put simply, an enduring power of attorney (EPA) is a document that you create to appoint another person such as a spouse or child to take actions on your behalf, if you lose capacity. It is especially important in farming situations where a farming business needs to continue notwithstanding that the owner has lost capacity through an accident, brain injury or early onset dementia for example.

The EPA does not grant your attorney the consent to medical interventions, such as surgery. Those types of decisions relating to your health are covered in a separate document known as an Advanced Healthcare Directive.

When does it comes into effect?

If your solicitor feels that you no longer have capacity, they will notify the Decision Support Service (DSS). This notification has to be accompanied by statements from two doctors supporting that belief.

Crucially, the EPA will only be in force for as long as you are incapacitated, so if you recover and regain capacity, the EPA will be cancelled and you will go back to making your own decisions.

The DSS monitors EPAs, to ensure that an attorney is acting in your best interests. If you lose capacity, your attorney has to send a list of your assets (money, property, jewellery etc) to the DSS. They will have to keep proper books and records and send a written report every year setting out details of monies paid out, costs etc.

The DSS will have the power to send someone out to check that the attorney is acting in your best interests or if they get a complaint about how your attorney is acting.

Setting up an EPA

The way in which you create an EPA has changed recently and unfortunately, there are challenges, particularly for elderly people, when it comes to setting up an EPA under the new system with the Decision Support Service (DSS).

Under the new regulations, only the person making the application for an EPA (called the donor) can set up an online portal with the DSS. There is no provision for their solicitor or another nominated agent to set up an online portal for them. Instead, anyone wishing to set up an EPA needs the following:

These requirements are particularly onerous and stressful for elderly clients.

However, once the account is set up, the person appointing the EPA will have to provide the DSS with their attorney details, outline the decisions they want their attorney(s) to make, set out if they have general or specific authority over certain finances, download the six application documents, get agreement from their attorney(s), get agreement from siblings who are not attorney(s), before printing off the relevant forms and getting yourself and your attorney(s) all together, in the same room, at the same time to sign the Declaration forms.

All EPAs under the new system, require a doctor to complete a medical certificate and also a solicitor to complete a legal practitioner statement.

In July 2024, there had only been 10 new EPAs activated since the new system was introduced last April which highlights the difficulties working through the new system. However given the catastrophe that could arise should a farm owner lose capacity, it is worth persevering and putting an EPA in place.

The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors and Tax Consultants does not accept responsibility for errors or omissions howsoever arising. Email aisling@agrisolicitors.ie