There are numerous issues that can arise which people never intended or wanted if they do not have a Will, Enduring Power of Attorney or and Advanced Healthcare Directive.
M.W. Keller & Son are offering people the opportunity to prepare for the future and what it will and may bring.
A Will in its most basic form is a document that gives effect to your wishes after you die. In your Will, you can make a gift of your property both real and personal and provide for those who you feel would benefit from your estate.
There are tax considerations when making a will and while in a lot of circumstances tax is not payable, it is critical that your wishes are discussed and analysed by professionals so that your wishes are not ultimately frustrated after you die because of a failure to plan for tax consequences.
It is also possible to create a Trust in your Will and this is most commonly used where the person making the Will has minor children or in cases where an adult child suffers from a disability.
It is most advisable to have a Will (even a very straightforward Will) as disagreements are common and can usually arise soon after a person dies.
Enduring Power of Attorney
An Enduring Power of Attorney is commonly described as a “living will” and it allows the person creating it (The Donor) to authorise an Attorney (who can be anybody the Donor wishes) to manage their affairs when they have lost the capacity to do so for themselves. The Attorney is usually a spouse or child of the Donor. A Donor should always discuss with their family and their prospective Attorney that they are planning to create and Enduring Power of Attorney and ensure that a prospective Attorney would be in a position and satisfied to act for them. An Attorney will have to effectively sign part of the Enduring Power of Attorney document to indicate that they are willing to act.
The Donor has the option to pick and choose what affairs an Attorney can manage on their behalf. In a lot of circumstances, Donor’s choose to give an Attorney as much power as possible and allow their Attorney to manage their financial, legal and personal care decisions. In other circumstances, Donor’s may have external individuals to the Enduring Power of Attorney appointed to manage their financial and legal affairs and as such, the Attorney will then only concern themselves with personal care decisions. It is important to note that an Enduring Power of Attorney document can be tailored to allow Donor’s to specifically include or exclude certain preferences and restrict the Attorney’s power in certain circumstances.
An Enduring Power of Attorney is somewhat like an insurance policy as it may never be required but it is worthwhile as if a person loses their capacity to manage their own affairs and they do not have an Enduring Power of Attorney, then it may be necessary to make an application to the High Court to have that person made a Ward of Court and this is an extremely lengthy process.
An Enduring Power of Attorney effectively has two stages. The first stage is when the Enduring Power of Attorney document is created and the Enduring Power of Attorney document is then typically held with the solicitor who drafted it. The second stage will only occur if the Donor loses the capacity to manage their affairs. The Attorney will then need to contact the solicitor who drafted the Enduring Power of Attorney and ask them to register it. The registration process for an Enduring Power of Attorney has numerous steps and can take some time to conclude but once it does, the Attorney is able to comprehensively manage the affairs of the Donor.
Advanced Healthcare Directive
An Advanced Healthcare Directive (“AHD”) is a written instruction given by a person detailing their desired medical or surgical treatment that they wish to receive in the future. This instruction is given by way of a written statement and is done so on the assumption that the person whom it is written for will not be able to make decisions regarding their treatment at the time when such decisions would be required.
The Law governing these directives has not yet come into effect but nonetheless AHD’s are widely used and are being followed by medical professionals on some occasions. It must be restated however that as the law which makes provision for these documents has not yet been commenced, there is no guarantee that they would be valid and enforceable.
Some of the notable provisions that individuals creating an AHD can avail of are as follows:
- AHD’s allow individuals to appoint Designated Healthcare Representatives (“DHR’s”) to exercise the powers that the AHD provides. The DHR will be required to sign the AHD to confirm their agreement to act as a DHR.
- Through an AHD, individuals can choose to refuse life sustaining therapies which would prolong their life such as antibiotics and artificial life support.
- Individuals who make an AHD have the option of making a general statement of their wishes and views relating to their treatment, care, food they would like to be given, religious beliefs etc.
- Provision can also be made to notify a friend or family member if the individual is terminally ill and the AHD may also include an instruction to keep the individual alive until that friend or family member has visited them.
- An individual may also instruct (where practicable) if they would wish to die at home rather than in a hospital/hospice.
If you would like to discuss the above matters further, please do not hesitate to contact Thomas Carroll at [email protected] or Julie Bermingham at [email protected] Alternatively, you can call 051 877029.