Farm Ireland

Saturday 21 April 2018

Create an enduring power of attorney

Aisling Meehan

There's hardly a family in Ireland untouched by Alzheimer's disease or other forms of dementia. Aside from the trauma of dealing with these diseases, the situation can be made even more stressful in the case of farm families if this situation has not been catered for legally by creating an enduring power of attorney (EPA). In the absence of this, where a farmer is proven to be of unsound mind, they will be made a ward of court, where a judge has the power to make decisions on the farmer's behalf. Both property and money is brought under the control of the court.

The committee is the person appointed to act on behalf of the ward. They can only do what the court authorises them to do and have no inherent authority or power. The person appointed is usually the person who made the wardship application.

However, where there is no suitable relative who is prepared to act or where there is disagreement among a ward's relatives, the court may appoint a State solicitor with no input from those who know the farmer.

On the death of a farmer who has become a ward of court, debts are settled and when a grant of probate or administration has been issued, the estate is distributed in accordance with the terms of the court or under the rules of intestacy.

But a farmer can avoid being made a ward of court simply by creating something called an EPA. This is a bit like a will, in that it enables a farmer to appoint someone of their choice to control their affairs should they become mentally incapacitated. A farmer can appoint almost anyone they wish to be their attorney including a spouse, a friend, a family member or a colleague. An EPA allows a farmer's attorney to specify:

-Where and with whom the farmer should live;

-What training and rehabilitation the farmer should receive;

-The 'small' but important things such as a farmer's dress and diet;

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-Whom the farmer should see and should not see, etc.

A farmer need not give their attorney power over all their affairs; instead they can make the EPA subject to particular restrictions and conditions.

Every farmer should enquire about creating an EPA with their solicitor if they have not already done so. It is a relatively simple process but it does require the services of both a doctor and a solicitor.

The solicitor must be satisfied that the farmer understands the effect of creating the power and that the EPA is not being created as a result of fraud or undue pressure. The doctor must be able to sign off on the fact that at the time of creating the EPA the farmer had sufficient mental capacity to create it. Thereafter, two people (one of which must be a family member) must be notified of the creation of the EPA.

The EPA can only come into operation when the farmer becomes mentally incapable. Before an application is made for an EPA to take effect, the farmer and the two people who were notified when the EPA was created must be notified of the intention to make an application to register an EPA.

Thereafter, they have five weeks to lodge an objection.

It is important to point out also that an EPA can be changed or cancelled by the farmer at any time before the farmer becomes mentally incapable.

With an EPA, the attorney can consult with family members and carers when making decisions on behalf of the farmer. It's in stark contrast with the wardship process, where the court has authority and control in relation to all decisions.

Disclaimer: Solicitor and tax consultant Aisling Meehan does not accept responsibility for errors howsoever arising

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