The slightest mention of a will or an Enduring Power of Attorney (EPA) can elicit fear in even the most rational of people. We understand that these are generally things that most people do not want to think about. However, their importance cannot be overemphasised. Having a will and an EPA in place will ensure the smoothest transition possible for you if you begin to lose capacity and for your loved ones into a life without you.

“Why do I need two separate documents to prepare for my death?” I hear you ask. Well, let me explain.

Wills

A will is your opportunity to make sure that your final wishes are met and that your estate is distributed how you would like, to the people you want. Otherwise, the law determines who your estate is ultimately passed to and how it is divided. It is very important to note that a will has no effect until the date of your death and is relevant only to the property you have at the time of your death.

When a person dies without having made a Will, they are said to die “intestate”. Under the Rules of Intestacy in Ireland, a strict line of entitlement is followed and the deceased or their family has no say is how your estate is ultimately distributed.

It is important that you make your will for today’s circumstances and keep it under constant review as your circumstances and those of any dependents change. Choose a day in the year, New Year’s Day or your birthday and give five minutes to consider your will. Is it up to date? If not, do what is necessary to bring it up to date.

Before making a will, you should think about the following:
1. Make a list of everything you own.
2. Choose two people that you trust to appoint as your executors. The executors will be responsible for carrying out your wishes. It is important that these people are organised and efficient.
3. Make a list of people that you want to leave something to. These are called your beneficiaries.
4. 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.
5. Amend, if necessary, throughout your life.

Wills are one of the most crucial legal documents that you can possess. While on the surface they appear to be a simple document, a simple mistake could render the will invalid. Your safest option when deciding to make a will is to speak with your solicitor. Solicitors make wills day in day out. More importantly solicitors know how to manage your estate after your death and will be in a position to advise you fully on all possible outcomes.

“Okay that makes sense. If my will is in place then what do I need an EPA for?” Well, let me tell you.

Enduring Power of Attorney (EPA)

Any person may become incapable of managing their own affairs at any stage in life. An accident, ill health or mental illness may make the everyday routines of paying bills and making financial decisions difficult and stressful, and in many cases, impossible. When a person becomes incapable of managing one’s affairs it can be a difficult time both for oneself personally and more importantly one’s family and close friends. It is important to note that family and friends do not automatically have the right to take over your affairs once you lose the ability to manage them yourself for whatever reason. Therefore, from both a practical and financial point of view it makes sense to consider appointing an attorney under what is termed an “enduring power of attorney” should that day arrive. In planning ahead and making an EPA, you are able to give your instructions whilst you are of sound mind, in anticipation of the possibility of not being capable at some future date to manage your affairs as you would otherwise wish.
An EPA can ensure that if you were to lose capacity for whatever reason, your financial affairs, in addition to other personal and property issues, would be looked after by someone you yourself have chosen and is trusted by you. It is important to stress that the completion of an EPA does not restrict your right to go on looking after your own affairs for as long as you are capable. The appointment of an attorney simply means that there is someone to take over if and when you cannot cope. If you wish, you can restrict the scope of the EPA by giving your attorney a specific authority to do only certain things on your behalf. In making your choice of attorney you need to be mindful and aware of the responsibility you will be placing on your attorney’s shoulders. It is always advisable to discuss with your attorney beforehand if they are willing to act and what exactly you require of them.
An EPA should be discussed with your 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. Average life expectancy in Ireland is increasing every year and it now sits at approx. 83 years of age. It is therefore apparent that having an EPA and a will in place are considerations that are more important than ever before. Each of these documents should be considered relative to the other and cohesively intertwined.

It is important to note that there is legislation due to commence in April of this year and changes may be very well made to the EPA process. I will be sure to keep you informed of any updates.

Wolfe & Co LLP are experts in the field of estate planning and are here to assist you throughout the process.

By Aislinn Collins Solicitor.

This article is for general information purposes/general overview only and does not constitute legal or other professional advice. We recommend seeking legal advice to interpret and advise on any aspect of the law.

March 2023 Wolfe & Co. LLP Solicitors