Hide Nav Show Nav
SOLR_PROP

Powers of Attorney Act, 1996

Characteristics of enduring power.

5.(1) A power of attorney is an enduring power within the meaning of this Act if the instrument creating the power contains a statement by the donor to the effect that the donor intends the power to be effective during any subsequent mental incapacity of the donor and complies with the provisions of this section and regulations made thereunder.

(2) The Minister may make provision by regulations in relation to all of the following matters concerning enduring powers of attorney:

(a) their form,

(b) their execution,

(c) ensuring that any document purporting to create an enduring power incorporates adequate information as to the effect of creating or accepting the power,

(d) the inclusion in the document of all of the following statements—

(i) by the donor, that the donor has read the information as to the effect of creating the power or that such information has been read to the donor,

(ii) by a solicitor (or a member of some other specified class of persons), that, after interviewing the donor and making any necessary enquiries, the solicitor or such member—

(I) is satisfied that the donor understood the effect of creating the power, and

(II) has no reason to believe that the document is being executed by the donor as a result of fraud or undue pressure,

(iii) by a registered medical practitioner, that in his or her opinion at the time the document was executed the donor had the mental capacity, with the assistance of such explanations as may have been given to the donor, to understand the effect of creating the power,

(iv) by the attorney, that the attorney understands the duties and obligations of an attorney and the requirements of registration under section 10 ,

(e) the keeping of accounts by the attorney in relation to the management and disposal of the donor's property,

(f) the remuneration, if any, to be paid to the attorney,

(g) the attestation of the signatures of the donor and the attorney,

(h) specific provision for cases where more than one attorney is appointed,

(i) the giving by the donor to specified persons of notice of the execution of the power, and

(j) if the regulations amend or revoke any regulations previously made under this subsection, saving and transitional provisions.

(3) The donor of an enduring power may in the document creating the power appoint one or more specified persons, being persons who are not disqualified, to act as attorney if an attorney appointed by the power dies or is unable or declines to act or is disqualified from acting as attorney.

(4) A power of attorney cannot be an enduring power unless, when executing the instrument creating it, the attorney is—

(a) (i) an individual who has attained 18 years and has not been adjudicated bankrupt or convicted of an offence involving fraud or dishonesty or an offence against the person or property of the donor or is not—

(I) a person in respect of whom a declaration has been made under section 150 of the Companies Act, 1990 , or

(II) a person who is or was subject or deemed subject to a disqualification order by virtue of Part VII of that Act,

or

(ii) a trust corporation (within the meaning of section 30 of the Succession Act, 1965 ),

and

(b) not the owner of a nursing home (whether or not it is a nursing home within the meaning of the Health (Nursing Homes) Act, 1990 ) in which the donor resides, or a person residing with or an employee or agent of the owner, unless the attorney is a spouse, parent, child or sibling of the donor.

(5) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.

(6) Subject to subsection (8) and sections 14 (3) and 14 (5), an enduring power shall be invalidated or, as the case may be, shall cease to be in force on the adjudication in bankruptcy of the attorneyor, if the attorney is a body corporate, by its winding up or dissolution or on the attorney being convicted of an offence referred to in subsection (4) (a) (i) or becoming—

(a) a person referred to in clause (I) or (II) of subsection (4) (a) (i) or

(b) an owner of a nursing home or other person referred to in subsection (4) (b),

unless the attorney is an attorney appointed by the power and subsection (3) applies.

(7) An enduring power in favour of a spouse shall, unless the power provides otherwise, be invalidated or, as the case may be, cease to be in force if subsequently—

(a) the marriage is either annulled under the law of the State or is annulled or dissolved under the law of another state and is, by reason of that annulment or divorce, not or no longer a subsisting valid marriage under the law of the State,

(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having the like effect,

(c) a written agreement to separate is entered into between the spouses, or

(d) a protection order, interim barring order, barring order or safety order is made against the attorney on the application of the donor, or vice versa.

(8) Subsection (6) shall not apply to an enduring power which authorises, or to the extent that it authorises, an attorney to make personal care decisions on behalf of the donor unless the attorney has been convicted of an offence against the person of the donor or has become a person who would be disqualified from acting as attorney by virtue of subsection (4) (b).

(9) An enduring power shall be invalidated or, as the case may be, shall cease to be in force on the exercise by the court of any of its powers under the Lunacy Regulation (Ireland) Act, 1871 , if the court so directs.

(10) No disclaimer, whether by deed or otherwise, of an enduring power which has not been registered under section 10 shall be valid unless and until the attorney gives notice of it to the donor.

(11) In subsection (4) (b) “owner” includes a person managing a nursing home or a director (including a shadow director within the meaning of section 27 of the Companies Act, 1990 ) of, or a shareholder in, a company which owns or manages such a home.