Enduring power of attorney in Northern Ireland

Why make an Enduring power of attorney?

Many people with dementia will reach a point where they can no longer make some decisions for themselves. This is known as lacking ‘mental capacity’ to make those decisions. When this happens, someone else – often a carer or family member – will need to decide on behalf of the person with dementia. 

After a diagnosis of dementia, it is a good idea to plan for the future. It may be hard, but it can also be reassuring to know that you have made your wishes and preferences clear. It can also help you to know that you have chosen people you trust to make decisions for you when you need them to. Planning ahead can make things easier for your family and friends as well. 

Enduring powers of attorney and controllership orders are just two ways to plan for the future. You can make arrangements, choices and decisions about your property and finances. For example, you can: 

• make a will (or update a will you have already made) 
• make sure that your finances are in order – this might include getting some financial advice (see Other resources for some suggestions about how to do this). 

For more information see our booklet Planning ahead. 

What is an Enduring power of attorney? 

An Enduring power of attorney (EPA) is a legal tool that lets you choose someone (or several people) you trust to make decisions for you. This person is referred to as your ‘attorney’, and you can choose what decisions they make for you. 

You must have what is called ‘mental capacity’ to make an EPA. This means that you must be able to understand what an EPA is and what making one means. Dementia is progressive which means that it will become more difficult for you to make plans and decisions over time. It is therefore a good idea to start thinking about making an EPA as soon as you can. 

An attorney can use an EPA from the moment it is signed and completed if it is set up to allow this. However, if you lose capacity then they will need to register the EPA with the Office of Care and Protection (OCP). The OCP is part of the court system in Northern Ireland (for more information see Other resources. It is responsible for the registration of EPAs and the appointment of controllers.)

Talking about EPAs with your family or close friends can be a good way to think about what you want for the future. It will also help them to know and understand your wishes and preferences. 

The attorney’s powers

You can give your attorney different powers, depending on what you want them to be able to do. You can give them: 

• general power, which allows them to do most things with your property and finances on your behalf, except things you can’t legally delegate, such as making a will 
• limited powers to manage certain aspects of your property and finances, as described by you on the EPA form. For example, you might allow your attorney to manage only your bank accounts but not your house.

You can put conditions or restrictions on both general and limited powers. You can also appoint different attorneys to have different responsibilities, but it’s a good idea to keep arrangements as simple as you can. Things an attorney can do on your behalf include: 

• signing cheques and withdrawing money from your bank accounts 
• buying or selling shares or property (including your house) 
• using your money to pay for your residential or nursing care. 

The attorney’s powers relate to property and finance matters only – not any other powers over you. They can’t decide where you live or what medical treatment or care you receive. 

If you’re considering making an EPA, it’s a good idea to seek independent legal advice from a solicitor. The Law Society of Northern Ireland can help you find a solicitor, or you can contact Solicitors for the Elderly. See Other resources for full contact details. 

Ordinary power of attorney 

In addition to EPAs, you may come across something called an ordinary power of attorney. These can also give someone permission to manage your property and finances on your behalf. They might be used, for example, if you are going abroad for some time and want someone to look after things while you are away. 

But unlike an EPA, these cannot be used if you become unable to make decisions about your property or finances in the future. When you have dementia, an EPA is a better option as it allows your attorney to make or continue to make certain decisions for you if you cannot make them yourself. 

What happens if you don’t make an Enduring power of attorney? 

Although it can be difficult to think about the future, and to plan for life with dementia, it is important. Planning can make things much easier as your condition progresses.

If you don’t make an EPA, and later become unable to make certain decisions for yourself, there may come a time when no one can legally make those decisions for you. This can make things difficult, such as paying bills or care costs. 

If this happens, someone may need to apply to become a controller. This gives them similar powers to an attorney, but they will be under more control by the OCP. However, the process of becoming a controller is more time-consuming and expensive than for an EPA.

The controller is chosen by the court, not by you. A controller must also do some things on an ongoing basis, such as paying approval fees to the OCP and submitting an annual report. So it is usually cheaper and easier for someone to be an attorney rather than a controller. 

The benefits of making an Enduring power of attorney 

Enduring powers of attorney (EPAs) can help to make things easier for you and the people you are close to as your dementia progresses. There are many benefits to having an EPA in place – some of these are listed below. 

• It can be reassuring to know that, if you are unable to make a decision for yourself in the future, someone you have chosen and trust will make that decision for you. 
• You can allow your attorney to make decisions even if you can still make them yourself. You don’t have to choose to do this, but it can be a useful way of giving yourself some extra support. It can also help your attorney to get familiar with all your financial and legal arrangements. 
• Making an EPA now will make things easier for the people close to you in future. It will be more expensive, difficult and time-consuming for them to get permission to act on your behalf when you are not able to give your consent. 
• Making an EPA can start discussions with your family or others about what you want to happen. This means decisions they have to make in the future will be based on your wishes.

The law in Northern Ireland in this area is set to change. However, at the time of publication it’s not possible to say for certain when that will be.