Tipp FM Legal Slot – 20th November 2012
John M. Lynch on EPA & Living Wills
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What is the Living Wills Bill?
Back in June the Advanced Healthcare Decisions Bill was passed to the second stage in the Dáil. The “living wills” Bill, if enacted, would give people the freedom to determine, in advance, the treatment they wish to receive if they become terminally ill or incapacitated and unable to communicate. Living wills, also known as advanced healthcare directives, take the control of what happens at the end of life “out of the hands of medical professionals” and “back to patients”, said Fine Gael TD Dr Liam Twomey, who introduced the Bill in June.
Dr Twomey described the difference the Bill would make to patients’ medical treatment: “If a person decided right now that in the event of their getting Alzheimer’s, or being in a long-term coma, that they did not want to receive specific forms of medical treatment, those wishes could be completely ignored by their doctors. What this piece of legislation is about is what we describe as ‘Living Wills’, where a person can say now what they would like to have done, or not done, for them in the event of them not being able to make that decision.”
How would having a Living Will benefit someone who ended up with, for example, Alzheimer’s disease?
According to the Alzheimer Society of Ireland, 41,740 people and 50,000 carers in Ireland are impacted by Alzheimer’s disease or a related dementia. Current figures suggest that within 20 years the number of people affected will have doubled. A person with a dementia related illness will live for an average of four to eight years, depending on their age at diagnosis, but over time will lose the capacity to make decisions for themselves.
None of us know what is around the corner and none of us would like to think of ourselves as being a burden on our families or loved ones. Should the Living Wills Bill be enacted it will be a major step forward in terms of caring for patients with dementia related illnesses. This Bill will allow patients to essentially create a living Will setting out their wishes and advising how they would like their care arrangements to be. It allows us to plan for the unforeseeable and allows patients to keep their medical care in their own hands whatever the circumstances.
How do the provisions in the Living Wills Bill differ from an EPA (Enduring Power of Attorney)?
While the Living Wills Bill makes provisions for how a person’s healthcare is dealt with EPAs are living wills insofar as how a person’s property is dealt with.
If someone becomes incapacitated through disability, illness or a progressive degenerative disease their assets could potentially be frozen. To avoid this situation a person, while in good health, should create an Enduring Power of Attorney (EPA), sometimes known as a “living will”. The Power of Attorney only takes effect when a person becomes mentally incapacitated. In the event of the Donors incapacity to deal with his/her money and assets the Power of Attorney transfers authority to look after the money and assets to the Attorney, once certain steps are taken. The Donor is not prevented from dealing with his/her money and assets by creating the EPA, this only happens if the Donor becomes mentally incapacitated.
What Powers does the appointed Attorney have?
An Enduring Power of Attorney can be very specific such as giving the Attorney a particular task to carry out, e.g. the sale of property or management of bank accounts. Alternatively the EPA could be very general and virtually entitle the Attorney to do everything that you would do yourself, with your money and property. This second type of EPA could also enable your Attorney to make “personal care” decisions e.g. where a person lives, whom s/he should see and not see, diet and dress. If you want to impose certain restrictions on the Attorney you can do so, for example prohibiting the sale of your house.
How do you appoint an Attorney?
You can appoint anyone you wish to act as your Attorney – your spouse, a family member or a friend. You can also appoint more than one person. You can specify that they must act together – decisions must be made jointly or alternatively it can be specified that they act jointly and severally where they can act together but decisions can also be made by one or other. The choice of Attorney is a personal matter but a good deal of thought needs to be given to the nomination. You need to ask yourself is this person suitable for the job? Are they trustworthy and do they have the skills to manage my affairs and make decisions for me? If you have made a decision to appoint one family member you can specify others that have to be consulted about what would be best for you and what your wished might have been had you been able to make decisions. You can also select an alternative Attorney in case your first choice is unwilling or unable to act.
What is the procedure for creating an EPA?
The procedure for the creation of an EPA is complex. You will have to consult your Solicitor and your Doctor. Your Solicitor will prepare the documentation for you after consultation with you and deciding whether a specific or general Power of Attorney is more suited to your needs. Your Attorney will need to be advised about their role and duties, and two independent people must be notified that you have created the Power of Attorney. Your Solicitor will prepare all of this paperwork and notices and guide you through the process.
Can the person who created the EPA changing his/her mind?
The EPA can be revoked at any time before it is registered, provided that the person that created the power still has the mental capacity to do so. If you change your mind about having an EPA or about your choice of Attorney you should consult your Solicitor immediately. Your Solicitor will advise on the process of revocation of the EPA.
How does the Attorney register the EPA?
The Attorney must apply to the Wards of Court office for registration of the EPA if the Donor becomes mentally incapacitated and it is only after it is registered that it comes in to effect. The Attorney will have to produce medical evidence of the Donor’s incapacity and notice of the application to register the EPA must also be served on the person that created the Power and the same two persons that were notified of the creation of the EPA. This series of notifications and checks involved in the registration makes sure that the system is open and transparent and allows people to object if they are concerned that the Attorney might be acting inappropriately. Once the EPA is registered the Attorney can lawfully act on the Donor’s behalf.
If there are urgent decisions required e.g. in the area of personal care the Attorney can make decisions before the EPA is registered and likewise if they need to take any action to preserve and protect the Donors assets, they can do so before the EPA is registered.
The Attorney has a duty to keep accounts and produce them to the Wards of Court office if required. The Attorney can only claim out of pocket expenses unless the Donor has specified that s/he is entitled to be paid.
An Enduring Power of Attorney is as important as your Will, but many people place more emphasis on the latter. The Enduring Power of Attorney will prevent a situation arising where money assets become frozen as friends and family members struggle to cope with the stresses and demands that illness will foist upon them.
