In Northern Ireland, an Enduring Power of Attorney (EPA) is a way for someone, known as the donor, to nominate a person or persons, called the attorney, to manage their financial affairs whilst they are still alive. Significantly, it can be drafted so that it continues even after a person becomes mentally incapable of looking after their affairs.
Anyone over the age of eighteen and with mental capacity can be a donor. If the person no longer has capacity, unfortunately it is too late to create an EPA. The donor can cancel or evoke the EPA at any time whilst they still have mental capacity.
An attorney can be a relative, a friend or a professional (such as a solicitor). The latter will usually charge for the work.
There is no limit on the number of attorneys that can be appointed, although two is usually considered most practical. The donor can stipulate whether the attorneys must make decisions together or separately. If one of the attorneys has left Northern Ireland or is on holiday at a time when a power needs to be exercised quickly, then there are obvious attractions for the other attorney to be able to make certain decisions on their own.
Given the responsibility of the power, it is essential that attorneys are chosen wisely. An attorney is not compelled to accept the role so the donor should approach the person in advance to ensure they are agreeable.
A donor can make several EPA’s with different attorneys giving powers with different conditions attached although one EPA should suffice in the majority of cases.
An EPA can cover any aspect of your property and financial affairs. However, it does not extend to making health or welfare decisions.
You can create a general authority, which authorises the attorney to make any financial transactions on your behalf, such as signing cheques, withdrawing monies from bank accounts, selling shares or even making gifts. Alternatively, you can place restrictions on the power, for example, by excluding anything to do with the house that you live in.
You can also stipulate whether the powers contained within the EPA take effect immediately once it is signed or only upon a triggering event in the future.
Given the significance of all these matters, it is essential that an EPA is drafted carefully and in accordance with the specific circumstances of each donor.
A prescribed form must be completed by both donor and attorney and then witnessed. The attorneys cannot witness each other’s signature. Nor can they act as witness for the donor.
Provided the EPA was completed at a time when the Donor had mental capacity and includes provision for continuation after mental incapacity, the EPA remains valid. However, in order for attorneys to continue acting under it, the EPA must be registered with the Court. There are specific rules which set out the procedure to follow. This registration is intended to protect not just the donor but also the attorneys.