We have seen an increase in enquiries in recent months from people wishing to make their Will and asking about Enduring Power of Attorney and Advance Healthcare Directives. There is some confusion about the scope of each of these and this post aims to give clarity on when they should be considered.
A Will is a witnessed document that sets out in writing a person’s wishes for his or her possessions, (called the 'estate'), after death.
Make your Will for today’s circumstances and amend it as your circumstances and those of any dependents change. Don’t make it on a prediction of what your circumstances will be if you live to 90 years of age.
5 Steps of Making a Will:
- Make a list of everything you own.
- Choose two people that you trust to appoint as your executors. The executors will ensure that your will is carried out.
- Make a list of people that you want to leave something to. These are called your beneficiaries.
- Visit your solicitor to draft your will
- The draft will be worked into a document that you are happy with, you will sign it, as will two witnesses.
- Amend if necessary, throughout your life
A person who dies without a Will is said to have died 'intestate’. In this case, the State decided what happens to the estate, depending on the surviving relatives:
A spouse/civil partner but no children: your spouse/civil partner gets the entire estate.
A spouse/civil partner and children: your spouse/civil partner gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
Children, but no spouse/civil partner: your estate is divided equally among your children (or their children).
Parents, but no spouse/civil partner or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
No relatives: your estate goes to the State.
People should make their Will early in life. A major life event will prompt most people to make their Will, for example, a house purchase, a marriage, the birth of a child.
If a person’s circumstances change, for example, a marriage breakdown or an illness, the Will should be reviewed and amended if necessary.
In case of an illness such as dementia or alzheimer’s, these illnesses generally occur gradually and over a period of time. It is in such circumstances that an Enduring Power of Attorney may be considered. It is vital that action is taken before a diagnosis is made.
Enduring Power of Attorney (EPA)
An Enduring Power of Attorney is a legal document that gives certain powers to a person appointed by you, to make decisions and act on your behalf in legal, financial personal care and medical matters. An EPA only becomes active if you become mentally incapacitated.
The scope of the EPA may give general authority to do anything that is lawful and in your best interest, or it might only give authority to do specific acts on your behalf, for example, legal, financial, housing, rehabilitation or personal care matters.
In relation to personal care decisions - these must be made in your best interests, must be in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions. The attorney is considered to be acting in your best interests if he/she reasonably believes that what he/she decides is in your best interests.
An EPA should be discussed with a solicitor as part of succession planning and the Will making process. When you are young and healthy is actually the best time to put an EPA in place.
When choosing who to appoint as your Attorney, consider the following:
- The person who the EPA is for (the donor) can revoke it at any time before an application is made to register it. Once the EPA has been registered you cannot revoke it even if you are mentally capable. To revoke it, you would have to apply to the court and the court must approve the revocation.
- An EPA ceases on the death of the donor.
- Where a spouse or civil partner is the attorney, the EPA ceases where:
- The marriage/civil partnership no longer exists due to annulment, divorce or dissolution
- A judicial separation is granted or the couple enter into a separation agreement
- A protection, barring or similar order is made on the application of either spouse/civil partner
- The court can also make an order cancelling an EPA where it finds the attorney is unsuitable.
Advance Healthcare Directives
An Advance Healthcare Directive is a statement about the kind and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time.
People usually make such directives to limit the treatment given in order not to prolong life, for example, a Do Not Resuscitate Order. Some people make them in order to state that they want all possible treatments to be provided. However, these orders are not always enforceable.
It is important to note that an Advance Healthcare Directive is purely that – a directive. There is no legislation in place in this country to provide for the enforcement of such documents. The Assisted Decision Making Act 2015 provides laws for these directives and was signed into law in December 2015 but has not yet been commenced. They will only be enforced if they are in keeping with the Guide to Professional Conduct and Ethics for Registered Medical Practitioners.
Therefore, they will not be enforced:
- If a directive states that someone wants all possible treatments to be provided, this is unlikely to be enforceable as it does not take account of the likely success of the treatment or of the costs involved.
- There is no doubt that an advance directive is not enforceable if it specifies doing something which is illegal. For example, an advance directive stating that you want to be given medication which will hasten your death would not be enforceable. Withdrawal of treatment is not the same as positive action to end life.
- A directive which specifies the kind of treatment you want is unlikely to be enforceable, especially if it conflicts with the doctor's clinical decision.
- A directive is unlikely to be considered valid under circumstances which clearly were not envisaged when it was drawn up.
So usually, an Advance Healthcare Directive is only binding when it involves a refusal of treatment, and only under the following circumstances:
- the refusal was made at a time when the patient was competent
- it covers the situation that has arisen
- the patient has not changed his mind.
Its objective is to assist medical staff to provide care for the patient in keeping with the patient’s values and ethical principles. It must also be in keeping with medical ethics.
Medical ethics currently in force in Ireland state that consultation with next of kin is desirable if the patient is unable to make a decision or to communicate and provides for a second opinion if there is a difference of opinion between the family and the doctor. It is not clear what legal basis there is for this, as next of kin have no general right to make decisions on behalf of adults.
Next of kin are (in order) spouses, children, parents, siblings. Partners have no legal status and may experience difficulties in even seeing patients if family members object.
An Advance Healthcare Directive can, therefore, provide clarity in what could be a nebulous situation otherwise.
It is only those who are seriously ill that should consider Advance Healthcare Directives as they must address the exact circumstances being faced. The person must be deemed to have the capacity to make informed decisions and make the plan. It must be made in writing. As always, consult with your solicitor if you have any doubt about how your wishes will stand up.
In summary, everyone should have a Will. An Enduring Power of Attorney gives certain powers to a person appointed by you, to make decisions and act on your behalf in legal, financial personal care and medical matters and only becomes active if you become mentally incapacitated. An EPA should be discussed in conjunction with your Will. An Advance Healthcare Directive deals purely with medical wishes for those who are seriously ill.
Average life expectancy in Ireland is increasing every year and it is now 80 years for a man and 83 years for a woman. While this is good news, it is apparent that Advance Healthcare Directives, Enduring Power of Attorney and having a Will are considerations more important than ever before. Each of these documents should be considered relative to the other and in a cohesive way. Visit your solicitor and put your wishes in writing to eliminate any doubt.