There are two different forms of Power of Attorney that can apply in Ireland. The first of these is a Power of Attorney whereby you can authorise someone to take certain actions for you and do certain things for you for a specific purpose or for a specific period of time. This form of Power of Attorney, which is often called a “Current” or “General” Power of Attorney would commonly be used where for example someone is out of the country and requires some business to be attended to here while they are away, or often it would be created by someone who, whilst they still have full mental capacity, may not be very mobile, and they want to give someone their Power of Attorney so that they can have assistance with dealing with their bank or other third parties.

The other form of Power of Attorney is an Enduring Power of Attorney which is a document which enables you to choose and appoint who it is that you would like to have responsibility for looking after both your personal affairs and your financial affairs in the event that you are unlucky enough, through accident or illness, to lose your mental capacity at some future point in time. 

Many people are mistakenly of the view that a person’s “Next of Kin” can make decisions on their behalf when in fact a person’s “Next of Kin” has no legal standing. 

The most important point about an Enduring Power of Attorney is that it is only ever intended to become effective IF you lose your mental capacity at some future point in time.  

Many people are of the view that an Enduring Power of Attorney becomes effective the moment it is signed and they therefore have shied away from completing one because they feel that by doing so their ability to manage their own affairs will be immediately taken away from them and put into the hands of their Attorneys. That is absolutely not the case.  

The specific difference between this form of Power of Attorney and the Enduring Power Of Attorney is that the Enduring Power only comes into effect in the event that you lose your mental capacity at some future date whereas the “Current “or “General “Power of Attorney only applies and can only be used for so long as you have full Mental Capacity.

 The Enduring Power of Attorney is referred to as “Enduring” because it lasts for the duration of any subsequent Mental Incapacity of you.

 If you should require any further information about the concept please contact us. 

Mark Felton was a founding member of the Irish Mental Health Lawyers Association and is a former Chairperson of that Association. He is also a member of the Dublin Solicitors Bar Association Mental Health and Capacity Committee and the Law Society Mental Health and Capacity Task Force.  

Our Mental Health Law solicitors have been at the forefront of this very important area and continue to work for the benefit of our clients in this important and difficult area of law.   We are members of the Mental Health Commission legal representatives panel and our Mental Health Law Solicitors Paul McKnight and Mark Felton are regularly appointed to act on behalf of patients who are involuntarily detained in approved centres.

If you have any questions about your rights following admission to a hospital in Ireland, either voluntarily or involuntarily our Mental Health Law knowledge fully enables our Mental Health Law solicitors to advise you on all matters of concern to you. If you feel your rights may have been violated or if you have any questions about your rights under the Mental Health Act, if you feel you have been discriminated against in your workplace or elsewhere arising out of this area of Law, or if you need any advice about the Mental Health Act and how it may affect you or apply to you, you can contact our Mental Health Solicitors who will be able to advise you and assist you about this very important area of law.

 We have also advised clients in relation to issues regarding their Human Rights under the United Nations Conventions on Human Rights, the European Convention on Human Rights and the Convention on the rights of Persons with Disabilities. Each of these conventions has specific sections that are relevant to those persons who are involuntarily admitted to Psychiatric Hospitals in Ireland. Our Mental Health Law experience in these areas fully equips our Mental Health Law solicitors to fully advise clients on all issues that arise.

The question of what happens to a person in the event that they are unfortunate enough to lose their mental capacity is one that we are frequently asked.  Who becomes entitled to look after them and manage their finances and other affairs? The concept of making someone a Ward of Court is something that most people have heard of, but what is it?.

This is a process by which an individual, usually someone who has been unlucky enough to have had their mental capacity reduced significantly either by accident or illness, who has not previously created an Enduring Power of Attorney, is taken under the protection of the High Court so that their financial affairs and other matters that affect them can be dealt with for their benefit. If someone is made a Ward of Court, the usual process is that all of their assets come under the protection of the High Court, and any decisions that are required to be made regarding the person’s finances are made through the High Court, which has to issue a consent to all matters concerning the Wards financial affairs or personal welfare.  Usually, all of the Wards assets get encashed and the cash fund is lodged with the Wards of Court Office in Dublin, which then invests the funds for the benefit of the Ward.

The process by which someone is made a Ward of Court is that usually a family member, although it does not have to be a direct relation, will commence the application process by instructing a solicitor who is experienced in the area, to act for them. A document called a Petition has to be completed which sets out full details of the individual who is being made a Ward of Court, and it sets out full details of all of their assets and liabilities and their direct relations .

Once that document is completed, it is lodged in the Wards of Court office together with two affidavits from two separate Doctors who must say, that in their view, the individual concerned no longer has the necessary mental capacity to manage his/her own affairs. Once those documents are lodged, the Wards of Court Office will arrange for an independent medical practitioner to examine the proposed Ward and once the medical practitioner’s report becomes available, and on the assumption that the finding is that the person does need to be taken into Wardship, the application will then be listed for hearing in the High Court. Once that hearing takes place and the relevant orders are made, the individual is deemed to be a Ward of Court and from then on all matters concerning him/her have to be dealt with through the Wards of Court Office. The person or persons who apply to have the individual made a Ward of Court are known as “the Committee”. The Committee can be involved in ongoing dialogue with the Wards of Court Office about the Ward’s affairs if they wish to be.

We are happy to elaborate further and answer any additional queries you may have about this complex area of Law.