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ARE YOUR LEGAL AFFAIRS IN ORDER?

Have you been meaning to make a Will but haven't found the time? Do you agree that making an Enduring Power of Attorney is a good idea, but believe that it is something that you can put on hold for the moment? Very often in our prime years we forget to plan for the future. Many of us have a huge mental block when it comes to ageing. So if you haven't done anything to date, now is the time to think about what you need to do to protect yourself and your family in the coming years. Retiring is about enjoying oneself and having the freedom to do the things that you have always wanted to do. There are a few small but important legal matters that we recommend you attend to now in order to put your affairs in order:

Will
It is important that you consider making a Will as soon as possible. A Will is a legal document setting out how you would like your assets to be dealt with on your death. We recommend that every person over 18 years of age makes a Will. By making a Will you would appoint someone you trust to handle your affairs on your death. If you do not choose this person in your Will, the person who can take out the Grant of Administration and handle your affairs on your death is determined by law and may not necessarily be the person you would have chosen. By making a Will you can also choose who your assets will pass to on your death. If you do not make a Will, once again, the law determines who is to get your assets. Your Will does not prevent you from dealing with your assets when you are alive but it does ensure that on your death they are dealt with exactly the way you would want them to be. You may also be able to reduce the amount of Inheritance Tax payable by your beneficiaries by making your Will in a tax efficient manner

If you have made a Will in the past, now may be the time to review it to ensure it still accurately reflects your wishes. Often we make Wills when our children are young. As your children become adults and circumstances change, your wishes may change as regards who you would like to administer your estate and how your assets should be distributed.

Power of Attorney
Most people don't foresee the difficulties that may be ahead of them in the event of them becoming physically incapable of managing their own affairs. For example, if you hurt your leg and became housebound, who would collect your pension and deal with your day-to-day banking affairs? Day to day matters can be dealt with by means of a simple Power of Attorney. This Power of Attorney would give another person the right, on your behalf, to do various things for you. The Power of Attorney remains valid for as long as you are still mentally capable of managing your own affairs, although we do recommend that it is updated regularly.

Enduring Power of Attorney
An ordinary Power of Attorney will not be valid if you become incapable of managing your own affairs by reason of a mental condition. It is for this very reason that, when you are making your Will, we also recommend that you sign a document called an Enduring Power of Attorney. In an Enduring Power of Attorney you can give one or more persons, called your Attorneys, the power to do things on your behalf and make certain decisions on your behalf if you become incapable of managing your own affairs because of a mental condition. Your Attorney can make certain personal care decisions, for example decisions of where you should live or what type of training/rehabilitation you might require. Your Attorney can also make decisions in relation to business, property or financial matters. Your Attorney cannot consent to medical treatment on your behalf. The difference between this and an ordinary Power of Attorney is that the Enduring Power of Attorney has no effect whatsoever while you are still capable of managing your own affairs.

At any time in the future, if you become incapable of managing your own affairs and property by reason of a mental condition, then your Attorney would apply to the High Court to register your Enduring Power of Attorney. Before doing this, your Attorney must serve notice of his or her intention to register the Enduring Power of Attorney on you and your next of kin and your doctor must sign a Certificate confirming that in his or her opinion you are incapable of managing your own affairs and property by reason of a mental condition. Once the Enduring Power of Attorney has been registered, your Attorney will be able to do things on your behalf in accordance with the powers you have given him

Unfortunately, we are all slow about signing an Enduring Power of Attorney. If you have not done so and become incapable of managing your affairs by reason of a mental condition, you may have to be made a Ward of Court. The President of the High Court, if satisfied that you should be made a Ward of Court, will appoint a person to look after your affairs but, once again, this may not necessarily be the person you would have chosen yourself. The procedure can be lengthy and time consuming.

Living Wills
As mentioned earlier, an Enduring Power of Attorney cannot give your Attorney the power to consent or refuse medical treatment on your behalf. A Living Will, also known as an Advanced Care Directive, would allow you to state in advance the medical treatment you would not like to receive in the event that you can no longer communicate. A Living Will would only come into force if you lose capacity and it will not override your decisions for as long as you are conscious enough to make a decision. A Living Will cannot provide for any form of euthanasia. It can provide for the withholding or withdrawal of life sustaining treatment and can only relate to lawful treatment.

However, although the Law Reform Commission published a report last year supporting the principle that adults should be legally entitled to refuse medical treatment including life sustaining treatment by way of a Living Will,there is currently no legislation in Ireland governing Living Wills and it remains uncertain whether they have any definitive legal standing in Ireland. The Advance Healthcare Decisions Bill 2010 was published earlier this year. This is in contrast to the US and many EU countries where Living Wills are legally valid. The general view now is that they would be recognised by the Courts in light of a Supreme Court decision in 1995 in a case called Re A Ward of Court. In that case the Supreme Court confirmed that each citizen has an enumerated constitutional right to refuse medical treatment even if the result is death.

Conclusion
Getting your legal affairs in order is not something that you should keep putting off until tomorrow. By attending to a few simple matters you will ensure that your assets will be dealt with how you want them to be dealt with both during your life and on your death. Illness and death can be a difficult time for families and attending to not only your legal but also your financial affairs will lessen the burden on you in retirement and allow you to live a happy fulfilled life knowing that your affairs are in order and in accordance with your specific wishes. Do not put off until tomorrow what you should do now! If you would like information or advice in relation to any of these issues, please contact:-

Hayes solicitors
Lavery House
Earlsfort Terrace
Dublin 2
Tel: 01-6624747

Jackie Buckley
jbuckley@hayes-soliciotrs.ie

Rachel Rodgers
rrodgers@hayes-solicitors.ie

Marie O'Riordan
moriordan@hayes-solicitors.ie