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  • Justin Mckenna

Time to make an Enduring Power of Attorney

Are you, or your parents, over 60 years of age?


Now is the time to do it.


Why?


It's about to become a whole lot more expensive.


On the 21st of November 2022 the government has scheduled the commencement of the Assisted Decision Making (Capacity) Act 2015. This is a ground breaking piece of legislation. Although it has been on the statute books for seven years It has taken until now to complete a complex process of consultation in order to enable important changes to be made.



The primary change is the abolition of the Office of Wards of Court. The Lunacy Regulations of 1871 are about to be abandoned. Under the old Victorian rules the status of the individual and that person's mental condition were subject to a paternalistic system of caring. Under the European Convention on Human Rights one's status is deemed to be free of the influence of others, particularly the State. The 2015 Act places the emphasis on function not status. In other words, the law makes no presumption on our ability to make decisions.


What will happen then, if, due to dementia, Alzheimer's or stroke you become unable to make decisions of your own?


Do not presume that your next of kin or your loved ones will be able to step in and make them for you. The Office of Decision Support Services is a state body designed to handle such a scenario. A decision making representative will be appointed, most likely your next of kin or a loved one, but at a price. An application must first be made through the Circuit Court.

This is unnecessary. Since 1996 it has been possible to create an enduring power of attorney (EPA) appointing some person or persons of your choosing in the event that your mental faculties might fail you. The difference from the 21st of November onwards is that the EPA must be registered straight away. Under the current system registration only takes place when a doctor determines that it is time to do so. This is not to say that the new system is a bad one but rather that the process will inevitably cost more at the outset. The reason is that the EPA may never be needed.


Whether you do it now or later, do it anyway.


Talk to your loved ones, talk to your solicitor. Discuss how you want to live but don't forget to discuss how you want to die.



Contact me at jmk@pals.ie or 0862540634.



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