Power of Attorney in Northern Ireland
Power of Attorney (PoA) allows you to choose someone else to make important decisions or act on your behalf, should you be unable to do so in the future. For example, a PoA will make it easier for someone to deal with third parties, such as banks, the tax office or the local council on your behalf.
In Northern Ireland, the two types of Power of Attorney that are available are an Enduring Power of Attorney (EPA) and a General Power of Attorney (GPA).
Unlike other parts of the UK, you cannot set up a health and welfare Power of Attorney in Northern Ireland.
Enduring Power of Attorney (EPA)
An Enduring Power of Attorney (EPA) appoints someone to manage your property and financial affairs. It must be set up and registered before it’s needed. The document must be signed while you (the ‘donor’) are capable of making your own decisions (have ‘mental capacity’).
Once an EPA has been registered, it can be used at any time, including if you lose your mental capacity.
An EPA can be tailored in terms of the powers it grants to the attorney(s). It can apply to all your property and affairs or it can be restricted to certain assets, such as savings and bank accounts, with property excluded.
The attorney’s powers can also be restricted. For example, it may allow them to manage a property – to organise home insurance, pay bills and accept rental income – but prevent them from selling the property.
You can give ‘power’ to one or more people. It’s important that you choose people you can trust to act in your best interests.
For more information, see the nidirect website.
General Power of Attorney (GPA)
If you want someone to look after your property and financial affairs for a certain period of time, you can give them a General Power of Attorney. A General Power of Attorney is only valid as long as you have mental capacity. You might choose a GPA if you want someone to look after your financial affairs for a temporary period, if you have health problems or you are abroad for a long period of time, for example.
A General Power of Attorney should not be used if:
- you’ve been diagnosed with a health problem that could lead to mental incapacity
- you’re worried that you may develop such a health problem in due course; or
- you want to put in place arrangements to ensure your affairs are managed by someone you trust in the event that you lose mental capacity in the future.
A General Power of Attorney can’t be continued if you lose your mental capacity. Under these circumstances, it’s more appropriate to use an Enduring Power of Attorney (EPA).
How to set up an Enduring Power of Attorney
Setting up an Enduring Power of Attorney is straightforward. You can do it through:
- Which? Wills: we have a Power of Attorney Selector to help you get the right Power of Attorney document
- a solicitor or will writer.
If you choose to use a solicitor or will writer, always ask for written confirmation of their fees beforehand.
When setting things up, you can stipulate which ‘powers’ you want to give; for example, you might only want your attorney to deal with your bills, but not to have the power to sell your property, or you may only want the attorney to deal with your affairs once you start to lose capacity.
You can give ‘power’ to one or more people and you are known as the ‘donor’. It’s important that you choose people you can trust to act in your best interests.
If you’re appointing more than one person, you must decide if they will make decisions:
- separately or together: sometimes called ‘jointly and severally’, which means attorneys can make decisions on their own or with other attorneys
- together: sometimes called ‘jointly’, which means all the attorneys have to agree on the decision.
You can also choose to let them make some decisions ‘jointly’, and others ‘jointly and severally’.
Using an Enduring Power of Attorney
As soon as an Enduring Power of Attorney has been registered and the documentation received, it can be used at any time that you see fit – you and the people you have appointed as your attorneys don’t have to wait for you to lose capacity.
If you are caring for someone, it might be that you need to use it straightaway, if the person you care for is very ill. Or you might need to use it every now and then for short periods, for example while they are in hospital. On the other hand, the document might sit in a drawer for years before it’s needed, but it can be reassuring to know that the legal paperwork is in place should it ever be needed.
To use the Enduring Power of Attorney, you must show a certified copy of it (not just a photocopy) to any organisation that you want to deal with on your loved one’s behalf, including their bank.
It can be reassuring to know that the legal paperwork is in place should it ever be needed
If you need additional certified copies at a later date, any solicitor should be able to do this for a small fee.
What if your loved one lacks mental capacity?
If your loved one is no longer able to make their own decisions, it’s too late to apply for an Enduring Power of Attorney. In this situation, if there is no valid Enduring Power of Attorney, you’ll need to make an application for a ‘Controllership Order’ to the Office of Care and Protection. Anyone can apply for such an order, including a partner, family member, friend or a professional, such as a solicitor, or someone from the person’s local authority social work department.
If successful, the Master of the Court can authorise the Controller to do anything that appears necessary or expedient with respect to the property and affairs of the person lacking capacity. This could be anything to do with their financial affairs including, for example:
- transfer and investment of money
- paying bills
- the sale or purchase of property
- making gifts or wills, or the carrying on of a business.
Persons appointed under such orders have to report regularly and are monitored by the appropriate authority in relation to all actions and decisions taken in respect of your property and affairs. This supervision is considered appropriate given that an individual who has lost capacity is unable to appoint a person themselves and of their own choosing to act on their behalf.
What is a Power of Attorney and why should you set one up? We also explain about Lasting Power of Attorney.
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