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Catch-22 on creating an enduring power of attorney in favour of my wife

Q&A: Dominic Coyle

“The Citizens Information website says you can nominate your spouse as the attorney, but this seems impossible.” Photograph: iStock

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Dominic Coyle
Tue Nov 28 2017 - 07:00

I am in the process of making an enduring power of attorney. I want to provide for my wife to be the attorney, which I expect most people would want to, and if she is not able to act or has predeceased me, then my daughter would become the attorney.

However there is a catch-22. In the Enduring Power of Attorney Regulations 1996 (Part A) regarding the notice parties you must inform that you have made the EPA, it says you must give notice of the execution of the enduring power to at least two persons. None of them may be an attorney under the power but at least one must be the donor's spouse.

If one of the notice parties must be my spouse, but a notice party can’t be the attorney, this seems to mean that you can’t give an enduring power of attorney to your spouse!

I have asked a few solicitors and none of them seem to know how to overcome this catch-22.

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The Citizens Information website says you can nominate your spouse as the attorney, but this seems impossible.

So is it possible to make an EPA giving the power of attorney to your spouse? The regulations seem to prevent this. Why?

Mr P.T., email

The first thing to say, I guess, is sensible you. The enduring power of attorney is one of the most common sense provisions in law. It allows a person to make sure they are cared for in the way they would wish and with decisions being made by people they would choose should they have the misfortune to become incapacitated and unable to make those decisions themselves.

Of course, the key thing is to put the arrangements in place while you still have all your senses about you, your mental facilities that is – and yes, the form requires you to get a doctor to certify that this is the case.

You also need to give careful thought as to whom you would wish to act for you in these circumstances. Apart from managing your financial and property affairs, the enduring power of attorney can also give someone control over your personal care – things like whom you can see and where; where you live; and even your diet and what you wear.

You do have discretion to limit the power of any attorney in these areas and can set down what those reasonable restrictions might be. Still, you can see why it’s important to get the details right.

But what about this catch-22? How can the rules surrounding the the creation of an enduring power of attorney prevent someone asking their spouse to represent them in that capacity? After all, most of us would presume a spouse to be best placed to know our wishes and best disposed to ensure they are respected.

And, of course, the truth is that there is nothing to stop you naming your spouse as the attorney. In fact, it is normal that someone would appoint a spouse or partner as an attorney.

Solicitor Richard Hammond, to whom I was directed on this issue, is an expert in this area. He finds it very hard to believe that any solicitor you would have approached would not have been able to reassure you instantly that there was no impediment to your naming a spouse as an attorney despite the requirements of the notice party provision of the regulations.

Mr Hammond, of Hammond Good Solicitors, in Mallow, Co Cork, puts your confusion down to the source of the information. The full text relating to notice parties in your original letter (which I have edited down her for space) is taken from the Explanatory Memorandum to the documents you fill out to create an enduring power of attorney, called a “precedent instrument”.

The actual regulations governing the creation of such a power set down an order in which notice parties are required to be notified. The details are found in Regulation 7 of the Statutory Instrument No 196/1996 - Enduring Powers of Attorney Regulations, 1996.

Problem

It confirms in the first place that you need to notify at least two people of your intention to create an enduring power of attorney and that neither of these people can be an attorney for you under the enduring power.

Then, in Regulation 7(c), it gets to the nub of your problem. It sets out, as you know, that one must be a close family member and also the order in which you are obliged to select them.

Top of the list is your spouse “if living with the donor” and, “if that does not apply”, a child.

The phrase “if that does not apply” “includes it not applying because of the relative being an attorney”, Mr Hammond states.

In this case, from what you say, you want your wife to be the attorney under the power and your daughter to be a substitute attorney, acting only in the event that your spouse, in turn, becomes incapable of operating as an attorney for you.

So that rules both of them out as notice parties. If you have another child, then you could fulfil the recruitment to notify a close family member by using them. If, however, there is no other child, the list under Regulation 7(c) proceeds to “a relative (if any) of the donor”.

It then goes on to clarify under regulation 7(d) that a relative could mean a parent of yours, a sibling or a grandchild over the age of 18. If you have no one in any of these categories, you’re looking at a widow or widower of your child, if relevant. Though in your case, it appears there might be only one child and they are still very much alive.

Finally, you proceed to any nephew or niece you may have, if they are the closes relative beyond (in your case) your spouse and child, and eventually any half-nephew or half-niece.

Clearly, it is advisable to approach a solicitor to make sure all the “i”s are dotted and the “t”s crossed if you are signing up to anything as important as an enduring power of attorney. The process of drawing up an enduring power of attorney and, subsequently, of registering it is very precise and legally detailed.

Having gone through the process a couple of times myself as a potential attorney, I can vouch for the fact that, with the proper advice, it is a very straightforward process. The danger for anyone thinking of operating on a DIY basis is that a small mis-step could mean you are frustrated in your efforts to choose whom shall have the authority to decide your care and financial well-being should the need arise.

In that event, a court may ultimately decide who makes decisions for you, and it might not be whom you would have selected.

In any case, the power of attorney cannot come into force until it is registered with the Registrar of the Wards of Court, and that only happens when, in your doctor’s opinion, you have lost the capacity to make decisions for yourself.

Up to that point, you can of course revoke the enduring power of attorney, something that might happen if your family circumstances change.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice

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