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Why do so many Irish adults not opt for peace of mind of an enduring power of attorney?

On The Money: An enduring power of attorney means someone you trust will help you make decisions for yourself if you no longer can do so alone

An enduring power of attorney offers comfort that someone who knows you and has your trust can make decisions for you if you cannot. Photograph: iStock

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Dominic Coyle
Fri Feb 24 2023 - 17:42

Just 6 per cent of Irish adults have in place an enduring power of attorney – a legal document that provides for family or trusted friends to step in and make decisions on your behalf if you are no longer able to do so for yourself. The figure from research recently published by Safeguarding Ireland is reported in the current edition of the Law Society Gazette.

What that means, obviously, is that more than nine in 10 people have made no such provision leaving them exposed to the vagaries of the health and legal systems if they suddenly find themselves incapacitated.

A bit like pensions, if people think of them at all, they tend to assume an enduring power of attorney is only something you need to consider as you become very old and in danger of mental infirmity. But that’s far from the case. People can suffer catastrophic ill health for all sorts of reasons – a car crash, a coronary or a stroke, natural disaster or simply bad luck of being in the wrong place at the wrong time.

And the real issue for most people is that by the time they realise they need to put such a document in place, it can be too late. All too often, our personal finance Q&A column receives queries from families who are very concerned about the welfare of family members but who have no legal entitlement to help them make decisions or make those decisions on their behalf.

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And people who receive a diagnosis of early stage dementia or Alzheimer’s may wish to put their affairs in order with an enduring power of attorney only to find that their doctor is not comfortable confirming that they retain the mental capacity to understand the process – as he or she is required to do as part of the process.

At present, enduring powers of attorney are drawn up under the 1996 Powers of Attorney Act. Subsequent legislation – the Assisted Decision-Making (Capacity) Act 2015 and the Assisted Decision-Making (Capacity) (Amendment) Act of 2022 – will change certain parts of the process in significant ways but, despite being on the books for over seven years in the first case, the Act has yet to be commenced.

The older legislation allows a person to appoint one or more people to make decisions on a person’s property, their financial affairs and their personal welfare. It can either be a general power, or with certain specific elements of care ruled in or out.

For instance, it might give the person selected as attorney power to manage your finances and where you should live but not what you can wear or eat, or whom you can see. Or you might be happy for them to make all those decisions.

Given the powers are quite wide-ranging and more or less impossible to row back on after they have been activated except when a court is persuaded of abuse of the power or the ability of your chosen attorney to continue to carry out their duties, choosing who you might ask to make those decisions on your behalf requires close attention – and, ideally, consultation with them to make sure they are happy to take on the role if necessary.

The new Act, when it comes into force, is less black and white in that it looks to allow a person to control their choices where they have the capacity to do so. For instance, you might no longer be able to manage your financial affairs but that doesn’t necessarily mean you cannot make personal car decisions.

The new Act also notes that just because you cannot make a decision by yourself right now, does not mean you might not be able to do so at a later date, so carers are required as far as possible to help people make decisions for themselves rather than just assuming control. As the HSE notes, the new legislation accepts a person’s capacity to make decisions can fluctuate, be issue-specific and/or time-specific.

In essence, it will be much more nuanced when it comes into force, which should be imminent.

The new Act also specifically excludes an attorney appointed under an enduring power of attorney from making future health decisions on behalf of the incapacitated person. Instead, for the first time, there will be specific Irish legislative provision for advanced healthcare directives.

This will allow the person to set down what treatment they do or do not want to undergo, including such things as a “do not resuscitate” clause or a notice indicating they do not wish exceptional efforts to be made to keep them alive.

Clearly, once the new Act is commenced, a person opting to take one out should also complete an advanced healthcare directive at the same time as they will more or less go hand in hand.

No sentient adult likes to anticipate a scenario where they are alive but incapable of making the most basic decisions about their own care but the fact is that while we are all living longer a portion of those longer lifetimes is generally a time of precarious health. It makes sense that we have provision in place if we are unlucky enough to lose our mental capacity.

In the same way as everyone is advised to draw up a will as soon as they have assets to dispose of – and certainly as soon as they have dependents, and again when their circumstances change – so too should drawing up an enduring power of attorney be seen as a routine piece of personal housekeeping, something you hope you never have to worry about but with the peace of mind that it is there should you ever find yourself in need of it.

And it is not something to fear. In the same way that you need a doctor and a lawyer to be satisfied that you have sufficient mental capacity to understand the process of drawing up an enduring power of attorney in the first place, the power cannot be activated subsequently without a doctor noting in writing that you are no longer capable of making decisions for yourself in a process that will normally be overseen by a solicitor.

There are plenty of checks to ensure an enduring power of attorney is not abused and plenty of peace of mind to be had from knowing you will be cared for by those who really know you and have your best interest at heart should the need arise. The alternative is much less certain or reassuring.

Hopefully the new, more nuanced legislation will see the number of Irish adults availing of the option rising dramatically from its currently abject one in 17 people.

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You can contact us at OnTheMoney@irishtimes.com with personal finance questions you would like to see us address. If you missed last week’s newsletter, you can read it here.