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Cahir solicitors outline importance of succession planning

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UPON retirement or as you enter your senior years, you will have new considerations for planning ahead for seniority or the Third Act as it is often referred to, writes Sharon Cahir.

Heretofore your priority may have been your children, siblings or your own aging parents but as you enter your senior years it’s a great time to put your focus back on yourself and this time in your life. With over 20 years of experience in the area of succession planning, I have begun to understand the challenges that arise as senior clients age and begin preparing for their own healthcare and financial priorities in their senior years. Age is but a number it is said, but if we are being honest aging introduces new challenges and opportunities. Some common questions are;

Can a person diagnosed with dementia sign legal documents?
Someone who is in the advanced stages of Alzheimer’s will not have the requisite capacity to sign legal documents. However, a person with a diagnosis of dementia may very well be able to sign legal documents. Generally speaking, capacity is individually assessed in each situation. As a general rule the person signing the legal document must have sufficient understanding of what the document is they are signing and the effect arising from their signing of the document.

What type of documents would be relevant in my Senior Years?

  •  Ability to sign a contract: Exchange your home, sell your home, transfer property
  •  Ability to make an Enduring Power of
  • Attorney for future health & financial care
  • Understanding of a power of attorney, which might give the authority to another person to sign future documents in your absence but when you have clear capacity
  • Capacity to sign a Will and Trust and associated succession planning documents
  • Capacity to get married (which is, after all, a specialized kind of contract).
  • Ability to make medical decisions — ie refusing medication, or treatment.
  • Ability to give informed consent for medical treatment; medical or surgical procedures may not be carried out without the informed consent of the patient
  • Considering end of life and health preferences in an Advanced Health Care Directive

Why is an Enduring Power of Attorney (EPA) necessary for Seniors
An enduring power of attorney is a legal agreement that enables a person to appoint a trusted person – or people – of their choice to make financial and/or property decisions on their behalf. An enduring power of attorney is an agreement made by choice that can be executed by anyone over the age of 18, who has full legal capacity. The EPA is a legal authorisation to act on someone else’s behalf in legal, financial and Healthcare matters which (unlike other kinds of power of attorney) will come into force after the person granting it loses mental capacity, and so can be used to manage the affairs of people who become ill with dementia or Alzheimer’s. As the document termed an Enduring Power Of Attorney is created when a person has full health and mental capacity more often than not it’s a document that’s created as a precaution and never used if there is no decline in mental capacity. But what it does provide is clarity and a road map at a time that is stressful for families and those that wish to care for you.

Does an Enduring Power of Attorney continue after my death?
No, an Enduring Power of Attorney ends on the death of the person who executed the EPA. If the person you appointed as attorney to take charge of your financial and healthcare decisions under the EPA is the executor named in your will then on your death their function in managing your affairs/estate is now in their role as Executor, not as the attorney under the EPA.

Is it easy to create an Enduring Power of Attorney
In short, yes but because the enduring power of attorney involves the transfer of considerable powers from you to another person to come into being at a time when you are at your most vulnerable there are a number of legal safeguards to protect you from abuses. The procedure for executing enduring power of attorney is comprehensive and requires the involvement of a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been complied with.
The document creating the power must be a specific format and include the following

  • A statement by a doctor verifying in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power
  • A statement from you that you understood the effect of creating the power
  • A statement from a solicitor that he/she is satisfied that you understood the effect of creating the power of attorney and that you were not acting under undue influence.

As a safeguard at least two people must be notified you have made an EPA, none of whom will be the attorney nominated in the form. One of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice
parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece). What is imperative is that the service upon them can be proved to the high court at any time the document needs to be formalised and relied upon by those you appointed as attorneys in it if you become mentally incapacitated.

Is it necessary to make an EPA?
Yes, I recommend everyone complete one especially from retirement age onwards. Approach seniority with an understanding of what you need to plan for. You need to plan for your finances and care in the event you do not have the capacity to deal with your own affairs. The time spent putting a Senior Life plan in place is well worth it for clarity for your family and next of kin.

Call Sharon at Cahir and Co Solicitors to arrange for a Will EPA and Succession consultation on 065 6828383.

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