by Owen Burke December-01-2021 in Property
As we come to the close of the year perhaps it’s time to look back. But it’s also a time to look forward and plan for the future. Two of the most basic documents we can put in place for succession planning are a will and an enduring power of attorney.
Will
Do you have a will? If so, when was the last time you reviewed it? Are you sure it’s up to date?
Anyone that has made a will knows that it is a relatively straightforward process. If you have not made one, or need to update your existing will, this is what you need to think about:
- Who are you appointing as your executors? These are the people who will administer your estate, take out a Grant of Probate and distribute your estate to the beneficiaries. They will deal with the solicitor for the estate and ensure everything is carried out in accordance with your wishes. In general, it is a good idea to appoint two. An executor can be a beneficiary, and this can sometimes encourage the administration of the estate more quickly. Sometimes a professional executor such as a solicitor may need to be appointed.
- Who are you appointing as guardians of any young children? A guardian is the person who “steps into the shoes” of a parent and looks after the welfare of a child. Usually, another family member is appointed and it can help if they have children themselves as they have some “on the job” experience so to speak.
- Who are you appointing as trustees? The role of a trustee is to hold assets on behalf of another person. A trust may be needed if children are under 18 as they cannot legally hold property until they are adults. A trust may be needed if a beneficiary has a disability or is vulnerable and cannot manage their own affairs. The trustees will be given various powers to manage the assets for the benefit of the beneficiaries.
- What property do you own? Is it held in your sole name or jointly with another person, perhaps a spouse? Do you wish to leave specific assets to particular people?
Enduring Power of Attorney (EPA)
What happens if you are no longer capable of managing your affairs in the future? Our increased life expectancy and advancements in medicine mean that many of us will live for longer with reduced mental capacity.
An EPA is a document that you sign to appoint an attorney(s) to manage your affairs if you become incapacitated – for example, as a result of an accident or illness. It can only be signed when you have full capacity and understand what you are doing. Both your doctor and your solicitor must sign certificates to confirm that at the time it is signed you understand what the purpose of the EPA is. If you already have issues in relation to capacity, an EPA is no longer appropriate. In a way, it’s a little bit like an insurance policy for your house – you need to have it in place before the house goes on fire! And like an insurance policy, you hope never to have to rely on it, but it’s there just in case.
In order to be effective, an EPA has to be registered in the High Court. A doctor has to provide a medical certificate at that stage to confirm that you no longer have the capacity to manage your affairs and notices have to be sent to the two people you appointed as your notice parties.
Attorneys can be given wide authority to deal with all of your assets and affairs. They can manage your accounts and sell your property if necessary. They can apply to the HSE under the Fair Deal scheme. In the absence of a registered EPA, the only options for family members are to apply to court to have you made a Ward of Court or apply to be appointed as a care representative. A care representative is limited to certain acts under the Fair Deal scheme, and they cannot manage your property.
Next Steps
Why not make it your New Year’s resolution to spring into action and make or update your will and consider putting an enduring power of attorney in place.
If you require assistance with reviewing and updating your Will and drafting your Enduring Power of Attorney, please contact Owen Burke, Trust and Estate Practitioner and Chartered Tax Adviser in our Property and Private Client team at oburke@hayes-solicitors.ie.
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About the Author
Owen Burke
Owen is a senior associate solicitor, Trust and Estate Practitioner and Chartered Tax Adviser in the Private Client team at Hayes. He specialises in Wills, Probate, Succession and Tax Planning and Enduring Powers of Attorney. He is a full member of the Society of Trust and Estate Practitioners (STEP). He is also a member of the STEP Ireland committee and the Dublin Solicitors Bar Association Probate and Taxation Committee.