Power of Attorney in Ireland - The Main Types and Advantages
Power of Attorney in IrelandUpdated on Monday 31st January 2022
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Persons interested in appointing another individual to act on their behalf in a specified situation can appeal to the power of attorney, a legal device set out by the local legislation for such events. In Ireland, the power of attorney is regulated by the Powers of Attorney Act 1996, which gives the attorneys the right to act in the interest of their clients. If you need to be represented by a lawyer, our team of Irish lawyers can provide you with an in-depth presentation on the power of attorney legislation.
The power of attorney in Ireland has multiple applications, for business purposes as well as for individual ones. It can be used by those who cannot be present in the country during the entire process required to open a company, as well as by those who are interested in using the services of a third party to purchase residential real estate.
Below, our team of lawyers describes the characteristics of this legal device, as well as the two available forms. As needed, one of our lawyers can act in your name, as the appointed party, and assist you when you cannot be present in the country or are unable to handle a certain matter.
What are the main conditions to draw up an Irish power of attorney?
An individual can choose to be represented by the power of attorney when in a good mental health. The person can appoint the attorney to act in a certain situation, when the donor (the person requesting the power of attorney) can’t take care of a certain legal situation, such as selling a property. Also, the attorney can be appointed to act when the donor is incapacitated by a physical or mental illness. An Irish lawyer can receive a general power of attorney, which allows the lawyer to act in the interest of the donor in various situations (legal, financial, purchases). Our Irish law firm can definitely help you if you need legal representation in Ireland in a company formation matter.
The video below provides more details on the power of attorney in Ireland:
The Irish legislation stipulates two types of power of attorney:
- power of attorney given in a specific/general situation;
- enduring power of attorney, applicable when the donor becomes incapacitated.
The power of attorney is given by the donor by signing a document which specifies what types of rights are given to the solicitor; our Irish lawyers can present to you further information on this topic.
When do you use the specific or general power of attorney in Ireland?
The specific and the general power of attorney are opposites in terms of the powers that are actually granted to the appointed party. As the name suggests, the specific one is limited in time, it is simply issues for a single, particular matter, and once this is completed, the agent will no longer have the powers granted through the legal document.
On the other hand, the general power of attorney is used by those who wish to delegate complete powers to the attorney. Simply put, the appointed individual has signature sights and is able to engage in all of the acts that the grantors would. This allows the agent to engage in all sorts of matters, from property to business or, as needed, financial issues. The agent can make payments from the grantor’s accounts, can sell or buy property in his name, make other types of purchase or arrangements, open a company in the grantor’s name, and handle business-related matters as needed.
For a power of attorney, the donor decides the duration as well as the powers the attorney will have. It should be noted that one has complete control over the use of this document, the power it allows and for choosing to work with someone outside the family. There is no need for the appointed attorney to be a family member, however, we do underline the importance of working only with a team of professionals who can be trusted, such as our Irish lawyers. Individuals under the age of 18, bankrupt persons, people convicted of fraud offences or of an offence against the donor himself cannot be appointed as an attorney. Likewise, individuals disqualified under the Companies Act cannot be appointed for this role.
What are the characteristics of the enduring power of attorney in Ireland?
The enduring power of attorney can be used when the donor becomes mentally incapacitated. The attorney will have the right to act on the behalf of the donor, by making personal care decisions for the donor, such as where the person should live or what rehabilitation program he or she should get. These decisions are imposed by the donor when signing the power of attorney, but you should know that the personal care decisions do not include healthcare situations.
It is important to note that the enduring power of attorney in Ireland is only created while the donor still has full metal capacity. This is an express condition for the use of the document in Court as well as anywhere else. Given the fact that mental capacity is a key element when granting powers through this type of document, the donor is required to provide a statement from a doctor conforming the said mental capacity.
When acting as per an enduring power of attorney in Ireland, the attorney will be able to decide where the mentally incapacitated individual lives and wish whom, the died, the training and rehabilitation, will have control over one’s personal papers as well as the housing and social welfare benefits. It is common for the line between personal and healthcare decisions in these cases to be an unclear one at times, however, the attorney does not have the power to decide in all cases regarding the medical treatment the donor should undergo. Our lawyers can explain this further as needed in your case.
An enduring power of attorney enters into force only after it is registered. This take place through an application to the Registrar or Wards of Court (the application which is commonly submitted by the attorney). The approval is issued once the medical proof is provided. The donor can choose to revoke the enduring power of attorney at any pointe before the application for registration is made, however, once it is registered, it can be revoked only through an application submitted with the High Court.
If you need information on the role of the High Court in the management of an enduring power of attorney, as well as the applications made with the Wards of Court, our attorneys in Ireland can answer your questions.
In all cases, the enduring power of attorney in Ireland ceases upon the death of the donor. However, in certain cases, for example when the appointed party is the spouse of the donor, the document can cease before the death of the donor in the event of divorce, annulment or dissolution of the marriage or civil partnership or when the couple is granted judicial separation.
The power of attorney can be used for probate, when administering the estate of a deceased individual. According to the Courts Service Annual Report, the following data on probate was in place for 2020:
- Total incoming probate requests: 15.687;
- Intestacies issued grants: 2,868;
- Probate grants issued: 12,141.
The power of attorney for business and commercial matters
As previously stated, the power of attorney is a document that can be used by foreign investors who wish to do business in Ireland and cannot be present in the country during the entire duration of the issues they need to tend to.
The benefits of using a lasting power of attorney for personal purposes were briefly discussed above, however, this type of document can also present significant advantages when it is used for business purposes. A lasting business power of attorney allows the business owner to appoint another party, such as one of our lawyers in Ireland, to make decisions in the best interest of their company. The power can be delegated not necessarily if the business owner becomes mentally incapacitated. It can also be used when the foreign business owner is simply unavailable to travel to Ireland to handle important matters in his own name.
Some advantages of using a business power of attorney are the following:
- Planning for incapacity: while this is not often taken into account, the business owner’s incapacity can stun the company’s operations; planning for this event is important in small or medium companies, just as in larger firms where the individual in question can have a key role on the board;
- Business continuity: if the business activities are not frozen by the business owner’s incapacity, the company can swiftly resume its activities with the help of the appointed attorney in fact;
- Business contracts: the fact that the business secures its continuity in the event of business owner incapacity will also mean that it will not lose important contracts or business opportunities;
- Time to reorganize: the appointed attorney in fact can help continue the business operations until other company members have had the time to rethink their business strategy, to come up with a plan or to otherwise decide how the company will move on.
In the event in which the business owner becomes incapacitates, a business lasting power of attorney will ensure the fact that the company will continue to trade, will derive profit and will be able to meet its financial requirements as well as its obligations towards its employees. In some cases, the fact that the business does not immediately face a grip perspective in the event in which its owner is incapacitated can also be very important for the business owner’s family.
Some of the powers that can be granted through a business power of attorney include the following:
- access, open and close bank accounts;
- update the corporate documents, make the needed submissions;
- conclude corporate agreements;
- make decisions regarding the company’s staff;
- update the business strategy for continuance and other needed acts.
Business owners in Ireland who are interested in knowing more about succession planning and the usage of an enduring power of attorney for business matters can reach out to the experts at our law firm in Ireland.
Revoking a power of attorney in Ireland
As previously mentioned, this is the role of the High Court. Not only does this court contribute in the annulment of such a document, it is also the supervisory authority. A power of attorney can be revoked if this action is confirmed by the High Court. In order for the cancellation to take place, the following will be assessed by the High Court:
- that the donor who wishes to revoke the document is mentally capable and it is likely to remain so;
- the attorney in fact, the appointed individual is unsuitable;
- the power of attorney was created as a result of fraud or pressure to draw it up.
The cancellation needs to be unequivocal and this means that the reasons to revoke it should be clear and that the party wishing to commence its cancellation states this unambiguously.
If the individual who receives the power of appointment (the donee) was unaware that the document was revoked and, as such, continued to act in pursuance of the powers therefore appointed, does not incur liability (to the donor or other individuals) for these acts, as a result of the fact that he was unaware that the power had been revoked. When an individual deals with the done not knowing that the power had been revoked, then the transaction shall remain valid in favour of that person, as if the power of attorney were in force.
The enduring power of attorney can be revoked at any time by the donor before its application for registration is lodged. Once it is registered, it cannot be revoked unless a special application is submitted to court. Our team can help you with more information about this process, as well as with legal counsel on whether or not you should revoke the document.
If you need further information on the power of attorney in Ireland, please contact our Irish law firm for assistance.