Nearly 40 years ago, my elderly dad granted me power of attorney to act on his behalf in relation to a small number of mixed properties he rented. I drafted the document myself and I am not a lawyer. It served its purpose. <\/b><\/p>\n
Three years ago, a single pensioner relative with credit union and bank accounts and an insurance policy needed to go into care, using Mary Harney\u2019s \u201cFair Deal\u201d scheme and allowing a younger sibling manage the pensioner\u2019s financial affairs. <\/b><\/p>\n
The institutions sought a power of attorney and wouldn\u2019t release funds without it. This was under legislation introduced about 30 years ago and obliges one to hire a solicitor and involves the High Court \u2013 a very costly process, especially when, in this instance, the estate is less than 150K euro. <\/b><\/p>\n
I thought one can always conduct one\u2019s own legal affairs? Is this lawmakers making work for lawyer pals? Is there any way round it? The Fair Deal scheme is quite prescriptive and not user-friendly.<\/b><\/p>\n
JC<\/b><\/p>\n
A lot of things happened 40 years ago that would not pass muster these days for all sorts of reasons.<\/p>\n
The fairly informal power you drew up to allow you take care of properties for your father served its purpose back then. One significant reason for that is that both parties understood the intent of the agreement and behaved honourably in executing it.<\/p>\n
I\u2019d like to tell you that such is always the case but I have a sizeable inbox of emails which shows the contrary. All too often, people twist personal arrangements to their own purpose, rather than the purpose that was intended.<\/p>\n
There is also a big difference between an ordinary power of attorney allowing a person to act for another for a limited period of time in the exercise of business and an enduring power of attorney, where a person grants someone else control over their affairs permanently where they no longer have the capacity to look after them themselves.<\/p>\n
Unsurprisingly then, as you mention, steps were taken to update arrangements around powers of attorney, especially enduring powers of attorney, in the 1996 Powers of Attorney Act.<\/p>\n
I am no expert on the history of powers of attorney. As best I can figure, it seems they were covered previously by 19th century legislation but even that seemed to require a bit more engagement with officialdom than you and your father decided upon.<\/p>\n
Just to mess with your head further, let me tell you that the structures governing powers of attorney have changed again in recent years with a whole new and very formal regime in place since April 23rd, 2023.<\/p>\n
There are still, however, a significant number of enduring powers of attorney drawn up under the 1996 legislation to which you are referring, so let\u2019s look at what that means, what\u2019s changed with the more recent legislation, what financial institutions will and will not do and, space allowing, a brief defence of Fair Deal.<\/p>\n
Under the old arrangements, the process was generally handled from beginning to end by your solicitor. It still involved addressing who might act for a person if and when they lost capacity (the attorneys), confirmation by your GP that you were of sound mind and able to enter such an arrangement, and from your solicitor that you understood the import of enduring power of attorney.<\/p>\n
You had to notify some family members and the attorneys of the proposed arrangement to allow for any objections there might be.<\/p>\n
When complete, it was held by your attorney. If, and only if, you lost capacity and that this was confirmed by doctors, was the enduring power of attorney registered with the High Court, after which it came into effect.<\/p>\n
There was a cost certainly but it was anything but \u201cvery costly\u201d. Speaking from memory, it cost a few hundred euro all told. It was certainly tidy \u201cbread and butter\u201d business for solicitors but hardly the making of their income.<\/p>\n
The new \u2013 post April 2023 \u2013 is to my mind slight clunkier. It introduces a new regulator \u2013 the Decision Support Service. The reason for this is twofold. One, there is a focus in the underlying legislation in allowing people to be as involved as possible in decisions concerning their lives and, two, there was concern about the capacity for elder abuse under the previous regime.<\/p>\n
The process itself is largely online with the onus on the person themselves to get documents filled out, secure necessary corroborations from potential attorneys, GP and solicitor. And those potential attorneys also have to create online identities with the Decision Support Service.<\/p>\n
Documents have to be filled out, then printed off for necessary signatures and finally scanned back into a computer for the application to be submitted to the Decision Support Service. To call it user friendly as a process would be a stretch.<\/p>\n
Once the forms are complete, they are registered with the Decision Support Service, not the court \u2013 and not retained in a solicitor\u2019s files \u2013 and a further application with much the same sort of proofs as the old system is required to activate the enduring power if it becomes necessary.<\/p>\n
Cost wise, the cost of registering with the Decision Support Service is, I think, just \u20ac30 but you will have additional fees to secure the solicitor\u2019s confirmation that you understand the import of the process and the GP\u2019s confirmation of your capacity. These will, again, amount to a few hundred euro.<\/p>\n
To activate the power down the line will cost another \u20ac90 to the Decision Support Service alongside the fees for medical confirmation of lack of capacity that would have applied under the old system.<\/p>\n
Is this \u201clawyers cashing in\u201d? Anything but. Solicitors are less involved in the new system than the old one but even back then this was not a financially onerous arrangement. <\/p>\n
I\u2019m not saying the costs are negligible but they are not excessive, especially in the context of the need for peace of mind that everyone knows what they are signing up to and, later, when fundamental decisions about personal independence are involved. In the context of someone with an estate worth \u20ac150,000, it is, I think, money well spent.<\/p>\n
My own postbag down the years shows that pressure on older people to support other family members financially and otherwise remains an issue in Ireland. Most people are very considerate of older family members but not all, by any means. Making sure those people are protected from such elder abuse is a worthy ambition, I think, and one worth paying reasonable modest sums for.<\/p>\n
It is certainly the case, now, that banks and other financial institutions will not release funds to someone who says they are acting for the accountholder without proper authority \u2013 i.e. a power of attorney or court order.<\/p>\n
People inform me that banks in other EU states are less picky on this issue but, even there, the authority granted to others to access funds must be made while a person has the capacity to do so.<\/p>\n
In the case you cite the person needed to go into nursing home care and a younger sibling was barred from acting for them. If the person in care has lost capacity, then you have moved beyond where enduring power of attorney can be considered. The costs involved will then be higher but that is because the individual or their family did not plan; it\u2019s hardly the fault of the system.<\/p>\n
Finally, on Fair Deal \u2013 the system under which the State subsidises the cost of nursing home care with contribution from the individual according to their own means \u2013 it may not be perfect but it is far better than the alternatives which is either people languishing at home without adequate personal or medical care – especially in a world where close family is generally more far flung that heretofore – or in the excessively clinical setting of a hospital, blocking beds that are needed for acute patients.<\/p>\n
Certainly, in a world where State nursing home provision is just a fraction of what is required, it delivers peace of mind to many families. <\/p>\n
Is it prescriptive? Yes, to a point, but compared to most serious legal and financial arrangements, I would consider it reasonably user friendly. There is certainly a lot of paperwork involved but we are talking significant State subvention here and the State has a duty to taxpayers to ensure that it has a complete financial picture where it is financially supporting a person in care.<\/p>\n
Can you sidestep the official enduring power of attorney process? No, and that is a good thing. Private, informal arrangements such as the one you recall from many years ago certainly worked for some people but they were wide open to shocking abuse and even criminality in others. <\/p>\n
The reason tighter legal frameworks have been put on such things is not to enrich lawyers or anyone else but to protect some of the most vulnerable people in our society at their time of need. The key thing for all of us is to take the time to prepare for an eventuality we may never need – but we might.<\/p>\n