What is an enduring power of attorney?
An enduring power of attorney (EPA) is a legal document that allows you to appoint one or more people you trust to make decisions on your behalf if you lose the mental capacity to do so yourself. The person you appoint is called your attorney.
Unlike an ordinary power of attorney, which ceases to have effect once you lose capacity, an EPA is specifically designed to endure beyond that point. It is a forward-looking safeguard: you put it in place now, while you have full mental capacity, so that someone you trust can step in if you ever become unable to manage your own affairs.
An EPA can cover financial decisions (such as managing your bank accounts, paying bills, selling property), and it can also extend to personal care decisions (such as where you live, what medical treatment you receive, and who has access to you). The scope depends on the powers you choose to grant when setting up the document.
In Ireland, enduring powers of attorney are governed by the Assisted Decision-Making (Capacity) Act 2015, as amended, which brought significant modernisation to how capacity and decision-making are handled in Irish law. The Act established the Decision Support Service (DSS), which now oversees the registration and regulation of EPAs.
Why you need an enduring power of attorney
Many people assume that if they lose mental capacity, their spouse, adult children, or next of kin will automatically be able to manage their affairs. This is not the case. Without an EPA, no one has the legal authority to access your bank accounts, sell your property, or make decisions about your care, regardless of how close a family relationship they have with you.
What happens without an EPA
If you lose capacity and do not have an EPA in place, your family must apply to the courts for a decision-making order under the Assisted Decision-Making (Capacity) Act 2015. Previously, this involved the wardship system, which was widely regarded as slow, expensive, and distressing for families. While the 2015 Act has replaced wardship for new cases, the court application process is still time-consuming and costly.
The process typically involves:
- Engaging a solicitor and often a barrister to make the application
- Obtaining medical evidence of your lack of capacity
- Notifying family members, which can sometimes lead to disputes about who should be appointed
- Waiting for a court hearing date, which can take months
- Ongoing court oversight and reporting obligations for the person appointed
The legal costs alone can run to several thousand euro, and the process can take six months or more. Meanwhile, bills may go unpaid, property may not be managed, and important decisions about your care may be delayed.
An EPA avoids all of this. By putting one in place while you have capacity, you ensure a seamless transfer of decision-making authority if it is ever needed.
Who should make an enduring power of attorney?
There is a common misconception that EPAs are only relevant for elderly people or those with a diagnosed condition that may affect their mental capacity. In reality, any adult over 18 should consider making an EPA.
Mental capacity can be lost at any age through:
- A serious accident or head injury
- A stroke
- A sudden illness or infection
- Early-onset dementia or other neurological conditions
- A mental health crisis
You cannot predict when or whether any of these events will occur. The one thing they have in common is that once they happen, it is too late to make an EPA. You must have mental capacity at the time you create the document. This is not a task you can defer until you think you might need it.
If you are making a will, it is sensible to set up an EPA at the same time. Both documents deal with planning for the future, and many solicitors offer them together as part of a comprehensive estate planning package.
How to set up an enduring power of attorney in Ireland
Creating an EPA is a structured legal process that requires the involvement of specific professionals. Here is what is involved:
Step 1: Choose your attorney
You need to decide who you want to appoint as your attorney. This should be someone you trust completely, who is over 18, and who is willing to take on the responsibility. You can appoint one person, or two or more people to act jointly (together) or jointly and severally (independently of each other).
Common choices include a spouse or partner, an adult child, a sibling, or a trusted friend. Consider the person's reliability, their proximity to you, their financial literacy (if granting financial powers), and whether they are likely to be willing and able to serve when the time comes.
Step 2: Instruct a solicitor
An EPA must be prepared by a solicitor. The solicitor will discuss the powers you want to grant, explain the legal implications, and draft the EPA document. The solicitor also has a duty to satisfy themselves that you understand what you are signing and that you are acting of your own free will.
Step 3: Medical certification
A registered medical practitioner (your GP or another doctor) must provide a certificate confirming that, in their opinion, you have the mental capacity to understand the effect of creating the EPA. This medical certificate is a mandatory part of the process and must be completed around the time the EPA is signed.
Step 4: Notify relevant parties
Before the EPA can be executed, you must give notice to certain people specified in the legislation. This typically includes your spouse or civil partner (if you have one) and at least one other person. The notice requirement is a safeguard — it ensures that people close to you are aware that the EPA is being created and have an opportunity to raise any concerns.
Step 5: Sign and witness
You sign the EPA in the presence of your solicitor and a witness. Your attorney must also sign the document, confirming that they accept the appointment and understand their duties. The solicitor provides a certificate confirming that all legal requirements have been met.
Types of powers you can grant
When creating your EPA, you decide exactly which powers to give your attorney. The two main categories are:
General authority (property and financial affairs)
This covers all aspects of your financial and property affairs, including:
- Managing bank accounts and investments
- Paying bills and debts
- Collecting income (pensions, rent, etc.)
- Buying, selling, or managing property
- Dealing with Revenue and tax matters
- Making gifts (subject to certain restrictions)
You can grant a general authority covering all financial matters, or you can limit it to specific areas. For example, you might authorise your attorney to manage your bank accounts but not to sell your home.
Personal care decisions
You can also authorise your attorney to make decisions about your personal welfare, including:
- Where you live (e.g., remaining at home vs. moving to a care facility)
- Who has access to you and who can visit
- Your diet, dress, and daily routine
- Medical treatment and healthcare decisions
- Training, education, or social activities
Personal care powers are particularly important. Without them, decisions about your care may be made by healthcare providers or institutions without input from the person you would have chosen to speak for you.
When the EPA comes into effect
An important point that many people misunderstand: signing an EPA does not give your attorney any immediate authority. The EPA only comes into effect when it is registered, and it can only be registered when there is reason to believe you are losing or have lost mental capacity.
The registration process
When your attorney believes you are becoming or have become mentally incapacitated, they must apply to register the EPA with the Decision Support Service (DSS). The registration process involves:
- Notifying you (the donor) that the application is being made
- Notifying the notice parties named in the EPA
- Providing medical evidence of your loss of capacity
- Submitting the application to the DSS with the required documentation
There is a waiting period during which you or the notice parties can object to the registration. Once registered, the EPA takes effect and your attorney can begin exercising the powers you granted.
Until registration, you retain full control over your own affairs. The EPA sits dormant as a safeguard, ready to be activated only when it is needed.
The role of the attorney: duties and responsibilities
Being appointed as someone's attorney is a significant responsibility. An attorney is legally obligated to:
- Act in your best interests at all times
- Respect your past and present wishes and preferences
- Support your autonomy — encourage you to participate in decisions as much as possible
- Keep your assets separate from their own
- Keep records of all transactions and decisions made on your behalf
- Avoid conflicts of interest
- Report to the DSS if required
An attorney who acts improperly can be removed by the court and may face legal consequences. The oversight provided by the DSS adds an additional layer of protection for the person who created the EPA.
EPA vs ordinary power of attorney: key differences
People sometimes confuse an enduring power of attorney with an ordinary power of attorney. The key differences are:
- Duration: An ordinary power of attorney ceases when you lose mental capacity. An EPA continues to have effect after you lose capacity — that is its entire purpose.
- Formalities: An ordinary power of attorney can be created relatively simply. An EPA requires a solicitor, a medical certificate, notice parties, and registration with the DSS.
- Scope: An ordinary power of attorney is typically used for specific, time-limited purposes (e.g., authorising someone to complete a property sale while you are abroad). An EPA is designed for comprehensive, ongoing decision-making.
- When it takes effect: An ordinary power of attorney takes effect immediately upon signing. An EPA's enduring powers only activate upon registration when capacity is lost.
If you need someone to act for you temporarily while you are available and capable (for example, during travel), an ordinary power of attorney is appropriate. If you want to plan for the possibility that you may lose capacity in the future, you need an EPA.
Cost of making an enduring power of attorney in Ireland
The cost of setting up an EPA varies depending on the complexity of your circumstances and the solicitor you instruct. As a general guide, you can expect the process to cost between EUR 500 and EUR 1,500 for a straightforward EPA. This typically includes the solicitor's fees for consultation, drafting, and execution of the document.
You will also need to factor in the cost of the medical certificate from your doctor, which is a separate fee. Some solicitors offer combined packages for a will and EPA together, which can represent better value than arranging them separately.
While the cost may seem significant, it is a fraction of what your family would spend on a court application for a decision-making order if you lost capacity without an EPA. The court process can cost several thousand euro in legal fees alone, plus medical reports and court costs. An EPA is a cost-effective investment in your family's future peace of mind.
For specific fee information, we recommend contacting our team directly to discuss your particular circumstances.
EPA and your will: why they work together
An EPA and a will serve different but complementary purposes. Your will deals with what happens to your assets after you die. Your EPA deals with what happens to your affairs if you lose capacity while still alive.
Together, they form a comprehensive plan for the future:
- Your will ensures your estate is distributed according to your wishes, appoints guardians for your children, and names executors to manage the process
- Your EPA ensures someone you trust can manage your finances and make care decisions if you become unable to do so yourself
Without both documents, there is a gap in your planning. A will alone does not help if you are alive but incapacitated. An EPA alone does not control what happens to your estate when you die.
Many of our clients at Coyne Solicitors choose to set up both documents at the same time. It is efficient, it ensures consistency (the same solicitor understands your full situation), and it gives you complete peace of mind that your affairs are in order.
If you have not yet made a will, our guide on why you need a will explains the process and what is involved. You may also want to understand inheritance tax in Ireland and how it affects your estate planning.
Take the next step
Setting up an enduring power of attorney is one of the most important things you can do to protect yourself and your family. It ensures that if the unexpected happens, someone you trust is in control — not the courts, not strangers, but the person you chose.
Do not wait until it is too late. You must have mental capacity when you create an EPA, so the time to act is now, while you are well and able to make this decision for yourself.
At Coyne Solicitors, our team can guide you through the entire process, from choosing your attorney to signing and storing the completed document. If you are also making a will, we can handle both together to ensure your estate planning is comprehensive and consistent.
Visit our wills service page to find out more, or contact us to arrange a consultation. We are here to help you plan for the future with confidence.
