S.I. No. 196/1996 - Enduring Powers of Attorney Regulations, 1996.

1. This notice must be given to the donor and also to the other persons who were notified of the execution of the enduring power and are named in it.

2. If any of those persons are dead or mentally incapable or their whereabouts cannot be reasonably ascertained, the notice must be given to the other person or persons who were so notified.

3. If all of those persons are dead or mentally incapable or their whereabouts cannot be reasonably ascertained, the notice must be given to the relatives (if any) who are entitled to receive notice by virtue or paragraph 3 of the First Schedule of the

Powers of Attorney Act, 1996

.

4. You must also give notice to the Registrar of Wards of Court of your intention to apply to the Court for registration of the power at the same time as you are giving notice to the donor and those other persons. A copy of each of the notices should be enclosed for the Registrar's information.

[

Note

The words in square brackets in the margin of the form may be omitted.]

GIVEN under my Official Seal, this 26th day of June, 1996.

MERVYN TAYLOR,

Minister for Equality and Law Reform.

EXPLANATORY NOTE.

These Regulations prescribe the form of instrument creating an enduring power of attorney under Part II of the

Powers of Attorney Act, 1996

; the form of the notice of execution of an enduring power to be given by the donor to certain persons; and the form of notice of intention to apply for registration of such power, to be given by the attorney to those persons.

5. You should indicate, at the place marked [2] in Part B of this document, the particular personal care decisions you want to authorise. You should also name any person you would like the attorney to consult so that the attorney can have regard to that person's views as to your wishes and feelings and as to what would be in your best interests.

6. You may also appoint an attorney or attorneys to act in the event that the original attorney is unable or unwilling to act. Provision for such an appointment is made at the place marked [3] in Part B of this document.

7. You must give notice of the execution of the enduring power as soon as practicable to at least two persons. None of them may be an attorney under the power. At least one must be the donor's spouse, if living with the donor. If the donor is unmarried, widowed or separated, notification must be given to a child of the donor (if applicable) or otherwise to any relative (i.e. parent, sibling, grandchild, widow/er of child, nephew or niece). You should give the names and addresses of those notified at the place marked [4] in Part B of this document. The prescribed form of notice is contained in the Third Schedule to the Enduring Powers of Attorney Regulations, 1996.

8. Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). You may provide for the attorney's remuneration, and who is to pay it, at the place marked [5] in Part B of this document.

9. If your attorney(s) have reason in the future to believe that you have become or are becoming mentally incapable of managing your affairs, your attorney(s) must apply to have the enduring power registered in the High Court. Once registered, an enduring power of attorney cannot be revoked effectively unless the Court confirms the revocation. You may revoke the power at any time before registration.

10. Before applying for registration of this power, your attorney(s) must give written notice of intention to do so to you and to the persons you notify of the execution of the enduring power. You and these persons (if they are not then available, certain of your relatives) will be able to object if you or they disagree with registration. The prescribed form of notice is contained in the Fourth Schedule to the Enduring Powers of Attorney Regulations, 1996.

Effect of accepting enduring power: information for attorney

11. If you have reason in the future to believe that the donor is, or is becoming, mentally incapable of managing his or her property and affairs, you must apply to have the enduring power registered in the High Court. Before doing so you must give written notice of your intention to the Registrar of Wards of Court and also to the donor and the persons whom the donor has notified of the execution of the enduring power. (If these persons are no longer available, notice must be given to certain relatives, as specified in the

Powers of Attorney Act, 1996

.) The prescribed form of the latter notice is contained in the Fourth Schedule to the Enduring Powers of Attorney Regulations, 1996.

12. The enduring power will not come into force until it has been registered. However, once you have applied for registration you may make any personal care decisions permitted under the power that cannot reasonably be deferred until the application for registration has been determined.

13. Any personal decision you make on behalf of the donor must be made in the donor's best interests. Section 6 (7) (

b

) of the 1996 Act provides the following guidance in this respect

"In deciding what is in a donor's best interests regard shall be had to the following

(i) so far as ascertainable, the past and present wishes and feelings of the donor and the factors which the donor would consider if he or she were able to do so;

(ii) the need to permit and encourage the donor to participate, or to improve the donor's ability to participate, as fully as possible in any decision affecting the donor;

(iii) so far as it is practicable and appropriate to consult any of the persons mentioned below, .their views as to the donor's wishes and feelings and as to what would be in the donor's best interests

(I) any person named by the donor as someone to be consulted on those matters;

(II) anyone (whether the donor's spouse, a relative, friend or other person) engaged in caring for the donor or interested in the donor's welfare;

(iv) whether the purpose for which any decision is required can be as effectively achieved in a manner less restrictive of the donor's freedom of action,"

Section 6 (7) further provides that in the case of any personal care decision made by an attorney it shall be a sufficient compliance with this provision if the attorney reasonably believes that what he or she decides is in the best interests of the donor,

14. You may recover the out-of-pocket expenses of acting as attorney. The enduring power may provide for remuneration for so acting.

15. You may disclaim at any time up to registration of the power. Thereafter you may do so only on notice to the donor and with the consent of the High Court.

16. After the enduring power has been registered you should notify the Registrar of Wards of Court if the donor dies or recovers.

PART B

[To be completed by the "DONOR" (THE PERSON APPOINTING THE ATTORNEY(S))]

Do not sign this form unless you understand what it means. If you are in any doubt you should obtain legal advice.

[Donor's name and address

I,............................................................ ........

of............................................................ ......

Donor's date of birth

born on.........................................................

Name(s) and address(es) of attorney (s)

appoint............................................................

of............................................................ .......

[and............................................................ ....

See note 3 in Part A of this document. If you are appointing only one attorney you should delete everything between the square brackets.

of............................................................ .......

* Delete the one which does not apply (see note 3 in Part A of this document).

[1] *jointly *jointly and severally]

[2] with authority to take on my behalf decisions on the following matters

* Delete if not applicable.

*where I should live

*with whom I should live

*whom I should see and not see

*what training or rehabilitation I should get

*my diet and dress

*inspection of my personal papers

*housing, social services and other benefits for me.]

*[....................[and......................]

should be consulted for his/her/their views as to my wishes and feelings and as to what would be in my best interests.]

[[3] I appoint....................................................

Delete this provision if, or to the extent, not required.

of............................................................ .......

[and............................................................ ....

of............................................................ .......

*jointly

*jointly and severally]

to act as attorney(s) if an attorney appointed by this instrument disclaims or dies or is unable to act or is disqualified from acting as attorney.]

[4] I am required to give notice of the execution of this power to at least two persons. I shall notify the following persons accordingly

............................................................ ...................... of............................................................ ................... ............................................................ ....................

The two or more persons to be notified may not include an attorney under the power. One must be a person selected as mentioned in note 7 of Part A of this document.

............................................................ ...................... of............................................................ ................... ............................................................ ....................

............................................................ ...................... of............................................................ ................... ............................................................ ....................

*Delete if not applicable

*[[5] My attorney(s) may be paid the following remuneration

............................................................ .........

Name of payer

by............................................................ .....]

I intend that this power shall continue even if I become mentally incapable.

I have read or have had read to me the information in paragraphs 1 to 10 of Part A of this document.

Your signature

Signed by me....................................................

Date

on............................................................ .......

Someone must witness your signature

In the presence of..............................................

Full name of witness..........................................

Your attorney(s) cannot be your witness. If you are married it is not advisable for your husband or wife to be your witness.]

Address of witness............................................ ............................................................ ................... ............................................................ ...................

[

Note

— Anything in this Part in square brackets is for guidance only and may be retained, deleted or omitted as appropriate.]

PART C [TO BE COMPLETED BY THE ATTORNEY(S)]

[This form may be adapted to provide for sealing by a trust corporation with its common seal.]

[If there are more than two attorneys attach an additional Part C.]

Do not sign this form unless you understand what it means. If you are in any doubt you should obtain legal advice. Do not sign the form before the donor has signed Part B.

I understand my duties and obligations as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming, mentally incapable, and that any personal care decisions made by me on behalf of the donor must be made in the donor's best interests.

[Individuals disqualified from acting as attorney are bankrupts, persons convicted of certain offences or disqualified under the Companies Acts or owning or connected with the management or operation of a nursing home in which the donor resides.

I have read or have had read to me the information in paragraphs 1, 2 and 11 to 16 of Part A of this document.I am not a minor or otherwise disqualified from acting as attorney.

Signature of attorney.

............................................................ .......

Date.

............................................................ ......

Signature of witness

in the presence of..................................

Each attorney must sign the form and each signature must be witnessed. The donor may not be the witness and one attorney may not witness the signature of another.]

Full name of witness................................. Address of witness.................................... ............................................................ ....... ............................................................ ........ ............................................................ .......

[To be completed only if there is a second attorney

I understand my duties and obligations as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming, mentally incapable, and that any personal care decisions made by me on behalf of the donor must be made in the donor's best interests. I have read or have had read to me the information in paragraphs 1,2 and 11 to 16 of Part A of this document.

See note above regarding disqualified persons.

I am not a minor or otherwise disqualified from acting as attorney.

Signature of attorney.

..........................................................

Date

..........................................................

Signature of witness

in the presence of..............................

Each attorney must sign the form and each signature must be witnessed. The donor may not bethe witness and one attorney may not witness the signature of another.]

Full name of witness......................... Address of witness.........................]

[To be completed only if the donor is appointing a person to act as attorney if an original attorney is unable or unwilling to act

[I understand my duties and obligations if I have to act as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming mentally incapable, and that any personal care decisions made by me on the donor's behalf must be made in the donor's best interest. I have read or have had read to me the information in paragraphs 1,2 and 11 to 16 of Part A of this document.

See note above regarding disqualified persons.

I am not a minor or otherwise disqualified from acting as attorney

Signature

....................................................

Date

on.................................................

Signature of witness]

in the presence of................................... Full name of witness.............................. Address of witness..................................]

[To be completed only if a second person is being so appointed

[I understand my duties and obligations if I have to act as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming, mentally incapable, and that any personal care decisions made by me on the donor's behalf must be made in the donor's best interest.I have read or have read to me the information in paragraphs 1,2 and 11 to 16 of Part A of this document.

See not above regarding disqualified persons.

I am not a minor or otherwise disqualified for acting as attorney.

Signature

....................................................

Date

on................................................

Signature of witness]

in the presence of.................................. Full name of witness.............................. Address of witness.................................]

[

Note

— Anything is this Part in square brackets is for guidance only and may be retained, deleted or omitted as appropriate.]

PART D: Statement by Solicitor

* Delete if enquiries not necessary.

I,........................................... Solicitor, of .........................................hereby state that after interviewing the donor [and making any necessary enquiries]* I am satisfied that .......................(the donor) understood the effect of creating the enduring power and I have no reason to believe that this document is being executed by the donor as a result of fraud or undue pressure. Signed............................................................ ................................... Date............................................................ ...................................

Note

: This Part may not be omitted from the instrument.

PART E: Statement by Registered Medical Practitioner

*Name of donor

I,..........................................., a registered medical practitioner, of .................................hereby state that in my opinion at the time this document was executed by the donor..................* had the mental capacity, with the assistance of such explanations as may have been given to the donor, to understand the effect of creating the power. Signed............................................................ .................................. Date............................................................ ....................................

Note

: This Part may not be omitted from the instrument.

THIRD SCHEDULE

ENDURING POWERS OF ATTORNEY REGULATIONS, 1996

Notice of execution by donor of enduring power

To............................................................ ........................................ of ............................................................ ........................................ ............................................................ ............................................

[Name of donor

TAKE NOTICE that I,............................................................ .... ,

Address of donor

of............................................................ ....................................... ............................................................ .........................................

executed on ........................... 19...... an instrument creating an enduring power of attorney and appointing

Name of attorney

............................................................ ...........................................

Address of attorney

of............................................................ ......................................... ............................................................ ............................................

Delete words in brackets if you have appointed only one attorney

[and............................................................ ................................... of............................................................ ......................................... ............................................................ ............................................]

to act as my attorney(s) if I should become mentally incapacitated.

Signature of donor]

Signed............................................................ ............

Date............................................................ ...............

Information for donor

17. You are obliged to keep adequate accounts of the donor's property and affairs and to produce the accounting records to the Court if required.

18. In general, as an attorney you are in a fiduciary relationship with the donor. You must use proper care in exercising on behalf of the donor the authority given by the enduring power and you must act only within its scope. In particular, you must observe any conditions or restrictions imposed by the power and also the limits imposed by the

Powers of Attorney Act, 1996

.

19. You may recover the out-of-pocket expenses of acting as attorney. The enduring power may provide for remuneration for so acting.

20. You may disclaim at any time up to registration of the power. Thereafter you may do so only on notice to the donor and with the consent of the High Court.

21. After the enduring power has been registered you should notify the Registrar of Wards of Court if the donor dies or recovers.

PART B

[TO BE COMPLETED BY THE "DONOR" (THE PERSON APPOINTING THE ATTORNEY(S)))]

Do not sign this form unless you understand what it means. If you are in any doubt you should obtain legal advice.

[Donor's name and address

I,............................................................ .......

of............................................................ .......

Donor's date of birth

born on...........................................................

Name(s) and address(es) of attorney(s)

appoint............................................................

See note 1 in Part A of this form.

of............................................................ ........

If you are appointing only one attorney you should cross out everything between the square brackets.

[and............................................................ .... of............................................................ ........

* Delete the one which does not apply (see note 1 in Part A of this form).

[1] *jointly *jointly and severally]

to act as attorney[s] for the purpose of Part II of the

Powers of Attorney Act, 1996

.

* Delete the one which does not apply (see note 2 in Part A of this form).

* with general authority to act on my behalf

If you do not want the attorney (s) to have general power, you must give details here of what authority you are giving the attorney(s).

* with authority to do the following on my behalf: in relation to

* Delete the one which does not apply

* all my property and affairs

If you choose the second alternative you must give details here of the property and affairs in relation to which the power is to apply.

* the following property and affairs

If there are restrictions or conditions, insert them here; if not, delete these words (see note 5 in Part A of this document).

[[2] subject to the following restrictions and conditions:]

*[[3] and with authority to take on my behalf decisions on the following matters

*where I should live

*with whom I should live

*whom I should see and not see

*what training or rehabilitation I should get

*my diet and dress

*inspection of my personal papers

* Delete if not applicable.

*housing, social services and other benefits for me.]

*[................[and.........................................]

should be consulted for his/her/their views as to my wishes and feelings and as to what would be in my best interests.]

[[4] I appoint....................................................

of............................................................ .......

[and............................................................ ....

of............................................................ .......

* Delete this provision if, or to the extent, not required.

*jointly

*jointly and severally]

to act as attorney(s) if an attorney appointed by this instrument dies or is unable or declines to act or is disqualified from acting as attorney.]

[5] I am required to give notice of the execution of this power to at least two persons. I shall notify the following persons accordingly

The two or more persons to be notified may not include an attorney under the power. One must be a person selected as mentioned in note 10 of Part A of this document.

............................................................ ............................ of............................................................ ......................... ............................................................ ...........................

............................................................ ............................ of............................................................ ......................... ............................................................ ...........................

............................................................ ............................ of............................................................ ......................... ............................................................ ...........................

*Delete if not applicable

*[6] My attorney(s) may be paid the following remuneration

............................................................ ...........................

I intend this power to be effective during any subsequent mental incapacity of mine.

I have read or have had read to me the information in paragraphs 1 to 13 of Part A of this document.

Your signature

Signed by me....................................................

Date

on............................................................ .....

Signature of witness

In the presence of..............................................

Your attorney(s) cannot be your witness. If you are married it is not advisable for your husband or wife to be your witness.]

Full name of witness................................................... Address of witness................................................... ............................................................ ........................... ............................................................ .......................... ............................................................ ..........................

[Note— — Anything in this Part in square brackets is for guidance only and may be retained, deleted or omitted as appropriate.]

PART C

[TO BE COMPLETED BY THE ATTORNEY(S)] [This form may be adapted to provide for sealing by a trust corporation with its common seal.] [If there are more than two attorneys attach an additional Part C.] Do not sign this form unless you understand what it means. If you are in any doubt you should obtain legal advice. Do not sign the form before the donor has signed Part B.

I understand my duties and obligations as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming, mentally incapable, my limited power to use the donor's property to benefit persons other than the donor and my obligation to keep adequate accounts in relation to the management and disposal of the donor's property for production to the High Court if required. I have read or have had read to me the information in paragraphs 1, 2 and 14 to 21 of Part A of this document.

[Individuals disqualified from acting as attorney are bankrupts, persons convicted of certain offences or disqualified under the Companies Acts or owning or connected with the management or operation of a nursing home in which the donor resides.

I am not a minor or otherwise disqualified from acting as attorney.

Signature of attorney

............................................................ ..........

Date

on............................................................ ......

Signature of witness

in the presence of..............................................

Each attorney must sign the form and each signature must be witnessed. The donor may not be the witness and one attorney may not witness the signature of another.]

Full name of witness...................................................... Address of witness........................................................ ............................................................ .............................. ............................................................ ............................. ............................................................ ...............................

[To be completed only if there is a second attorney

[I understand my duties and obligations as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming, mentally incapable, my limited power to use the donor's property to benefit persons other than the donor and my obligation to keep adequate accounts in relation to the management and disposal of the donor's property for production to the High Court if required.

I have read or have had read to me the information in paragraphs 1, 2 and 14 to 21 of Part A of this document.

I am not a minor or otherwise disqualified from acting as attorney.

Signature of attorney

............................................................ ..........

Date

............................................................ ..........

Signature of witness

in the presence of........................................

Each attorney must sign the form and each signature must be witnessed. The donor may not be the witness and one attorney may not witness the signature of another.]

Full name of witness..................................... Address of witness........................................]

[To be completed only ifthe donor is appointing a person to act as attorney if an original attorney is unable or unwilling to act

[I understand my duties and obligations if I have to act as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming, mentally incapable, my limited powers to use the donor's property to benefit persons other than the donor and my obligation to keep adequate accounts in relation to the management and disposal of the donor's property for production of the High Court if required.

I have read or have had read to me the information in paragraphs 1, 2 and 14 to 21 of Part A of this document.

Signature

............................................................ ..........

Date

on............................................................ ......

Signature of witness]

in the presence of.............................................

Full name of witness.......................................]

[To be completed only ifa second person is being so appointed

[I understand my duties and obligations if I have to act as attorney, including my duty to apply to the High Court for the registration of this instrument under the

Powers of Attorney Act, 1996

, when the donor is, or is becoming, mentally incapable, my limited powers to use the donor's limited powers to use the donor's property to benefit persons other than the donor and my obligation to keep adequate accounts in relation to the management and disposal of the donor's property for production of the High Court if required.

I have read or have had read to me the information in paragraphs 1, 2 and 14 to 21 of Part A of this

Signature

............................................................ .........

Date

on............................................................ ......

Signature of witness]

in the presence of..............................................

Full name of witness........................................]

[

Note

—— Anything in this Part in square brackets is for guidance only and may be retained, deleted or omitted as appropriate.]

PART D: Statement by Solicitor

* Delete if enquiries not necessary.

I, ....................................................., Solicitor, of ....................................... hereby state that after interviewing the donor [and making any necessary enquiries]* I am satisfied that .................(the donor) understood the effect of creating the enduring power and I have no reason to believe that this document is being executed by the donor as a result of fraud or undue pressure.

Signed............................................................

Date............................................................ ...

Note

: This Part may not be omitted from the instrument.

PART E: Statement by Registered Medical Practitioner

*Name of donor

I, ....................................,a registered medical practitioner, of............... hereby state that in my opinion at the time this document was executed by the donor ........................ had the capacity, with the assistance of such explanations as may have been given to the donor, to understand the effect of creating the power.

Signed............................................................ .

Date............................................................ ....

Note

: This Part may not be omitted from the instrument.

SECOND SCHEDULE

Instrument creating Enduring Power of Attorney (personal care decisions only)

Prescribed Form

PART A

EXPLANATORY MEMORANDUM

[

Note

. This Part may not be omitted from the instrument.]

Notice to donor and attorneys

S.I. No. 196 of 1996.

ENDURING POWERS OF ATTORNEY REGULATIONS, 1996.

I, MERVYN TAYLOR, Minister for Equality and Law Reform, in exercise of the powers conferred on me by section 5 (2) of, and the First Schedule to, the

Powers of Attorney Act, 1996

(No. 12 of 1996), hereby make the following regulations

1 Citation.

1.

These Regulations may be cited as the Enduring Powers of Attorney Regulations, 1996.

2 Commencement.

2.

These Regulations shall come into operation on the 1st day of August, 1996.

3 Form of instrument creating enduring power.

3.

(

a

) An instrument creating an enduring power shall be in the form set out in the First Schedule to these Regulations or, if the instrument relates only to personal care decisions, in the form set out in the Second Schedule thereto.

(

b

) It shall include all the explanatory information in Part A of the form and the statements in Parts D and E.

4 Execution.

4.

(

a

) The instrument shall be executed by both the donor and the attorney (who shall execute the instrument after the donor, but not necessarily on the same date), each in the presence of a witness, but not necessarily the same witness, who shall give his or her full name and address.

(

b

) The donor shall not witness the signature of an attorney nor shall an attorney witness the signature of the donor or of another attorney.

5 Accounts.

5.

An attorney who is appointed to act on the donor's behalf in relation to property and affairs of the donor shall keep adequate accounts of the management thereof and, in particular, of any expenditure to meet the needs of persons other than the donor or to make any gifts authorised by the enduring power.

6 Remuneration of attorney.

6.

The instrument may make provision in relation to the remuneration of an attorney.

7 Notice to specified persons of execution of enduring power.

7.

(

a

) Notice of the execution of the enduring power by the donor shall be given by or on behalf of the donor to at least two persons named by the donor in the enduring power.

(

b

) None of them shall be an attorney under the power.

(

c

) At least one of them shall be—

(i) the donor's spouse, if living with the donor, or

(ii) if clause (i) does not apply, a child of the donor, or

(iii) if clauses (i) and (ii) do not apply, a relative (if any) of the donor.

(

d

) In subparagraph (

c

) (iii) "relative" means a parent, brother or sister (whether of the whole or half blood) or grandchild of the donor, the widow or widower of a child of the donor or a child of the donor's brother or sister (whether of the whole or half blood).

8 Form of notice of execution by donor of enduring power.

8.

A notice of the execution of an enduring power by the donor shall be in the form set out in the Third Schedule to these Regulations.

9 Form of notice to donor and other persons of intention to apply for registration of enduring power.

9.

A notice by the attorney to the donor and other persons mentioned in paragraph 2 or 3 of the First Schedule to the

Powers of Attorney Act, 1996

, shall be in the form set out in the Fourth Schedule to these Regulations.

FIRST SCHEDULE

Instrument creating Enduring Power of Attorney

Prescribed Form

PART A

EXPLANATORY INFORMATION

[

Note

: 1. This Part may not be omitted from the instrument.