Ask The Expert: Enduring Power of Attorney
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What is the main topic discussed in this episode?
The Clare Byrne Show on Newstalk. With Aviva Insurance. As our families get older, the question of an enduring power of attorney may come into play. So what exactly is it and what is the process behind it? Well, to discuss this, I'm joined by the Director for the Decision Support Service, Áine Flynn. Áine, you're very welcome. Good morning, thank you. I suppose we should start there really and explain what enduring power of attorney is and what the difference is between it and power of attorney. So how does it all work?
Yeah, Enduring Powers of Attorney have been around for quite a while, since an Act of 1996.
What is an Enduring Power of Attorney?
And with the Assisted Decision-Making Capacity Act, which has now been operational for three years, they operate on a different format. To explain some of the basics, when you make an EPA, you're an adult with capacity, not necessarily an older adult. In fact, we're keen to address the fact that perhaps people should be doing these when they're, I don't know, 55, not 95. If you don't have one and you're 95, do make one. So you're called the donor and you are granting an authority to a person, a trusted person in your life called the attorney. So that word attorney does not mean lawyer. Anytime I say attorney, don't think of lawyer. Think of that person close to whom you're naming to take on this role only in the event that you lose capacity at a later point.
so that they are then authorised by you to take decisions about your property and affairs and your personal welfare in that legally managed way.
And who makes the decision that you need this attorney that you have appointed to take over?
So that would only be at the second stage. So at the first stage, it is all about you being in control. And that's important. This is all based on rights based legislation. So it's about you ensuring that even if your capacity shifts and diminishes, your choice, your wishes will continue to be respected.
How does the process of creating an Enduring Power of Attorney work?
So when you're well and have full capacity to do so, you're naming that person or persons. Actually, it's quite good to have replacement attorneys as well. then it's only in the event that you subsequently lose capacity and that is verified and it's brought to us. We have oversight and management of both the registration and supervision of EPAs in the decision support service. When we get that second stage confirmation that you have lost capacity, it's only in that event that the attorney then commences as your decision maker. And in fact, and this is new reports to us, we supervise and we provide support to make sure that all of that works well.
The appointed attorney is not going to be making the decision. Now I take over because you've lost class. Because people get nervous about that, don't they?
They're nervous about a number of things, which is perhaps contributing to the relatively low take-up that we have in Ireland of EPAs. If we compare ourselves to the UK jurisdictions, they're hovering around the 20% mark, and it's somewhere around 8%, perhaps 11%, but no more than that here, which, given that EPAs have been around for a generation, we are looking to improve significantly. But yes, people can have those reservations. They may think this is only for when I'm old or only, and this is a bit concerning, when capacity becomes a live issue. Or there may be that reservation that I'm giving away the keys to the farm almost literally at this early stage. Or sometimes people think, well, I've made my will.
What are the differences between an Enduring Power of Attorney and a regular Power of Attorney?
That's quite different. Will is for when you're deceased. Or they may think that, well, I don't own very much, so it doesn't apply to me. Or sometimes, and this is quite embedded as a misconception sometimes, My next of kin is going to be able to make those decisions for me anyway, which isn't true. Never true, never has been outside of a legal arrangement. That's the focus of our coming campaign.
And it's wise, isn't it, to make these plans and put your enduring power of attorney plans in place when you're well and when there isn't a crisis in your family. Because often I would imagine people leave this until a time when there's something happening.
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Chapters
5 chapters
1
What is the main topic discussed in this episode?
0:01–0:39
2
What is an Enduring Power of Attorney?
0:39–1:54
3
How does the process of creating an Enduring Power of Attorney work?
1:54–3:13
4
What are the differences between an Enduring Power of Attorney and a regular Power of Attorney?
3:13–4:36
5
Why should younger adults consider setting up an Enduring Power of Attorney?
4:36–7:34
Speakers
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