Protecting myself when making an EPA
It is abuse if somebody tries to unduly influence you to create an EPA or if they try to make you create an EPA when you lack the mental capacity to do so. There are several safeguards built-in to procedures for creating and registering an EPA that are designed to prevent this type of abuse.
At the time of creating an EPA, both your doctor and solicitor must be involved. Your doctor must certify that you have the mental capacity to understand the effect of creating the EPA. If you are assessed as not having capacity, you should not be allowed to make an EPA. Your solicitor must also certify that you understand the effect of creating an EPA and that he or she is satisfied that the EPA is not being created as a result of fraud or undue influence.
An EPA must be registered before it can take effect. Notice of the attorney’s application to register the EPA must be given to you and two or more people who were nominated by you as notice parties at the time of the creation of the EPA. This enables either you or the notice parties to lodge an objection prior to registration if you or the notice parties have any concerns about the EPA or the actions of the attorney(s). For example, you or the notice parties may be concerned about premature registration. This occurs if the attorney(s) attempts to register an EPA when you still have the capacity to make decisions regarding your affairs.
Your attorney(s) has a duty to manage your money and property in accordance with the instructions you made at the time of creating the EPA. While the legislation has yet to be agreed and put in place, under the proposed Assisted Decision-Making (Capacity) Bill, 2013 even when the EPA is registered your attorney(s) will still be obliged to include you in any decisions that you have the capacity to engage in. This means that any actions or decisions taken by the attorney(s) on your behalf must be least restrictive of your rights and freedoms and give effect to your will and preferences.
However, at present in the absence of the Assisted Decision-Making (Capacity) legislation, an attorney’s actions are subject to little or no supervision. Therefore, it is important that you carefully consider who to appoint as your attorney(s) and what powers you wish to grant to the attorney(s) in relation to your financial and business affairs as well as your personal care.