Power of Attorney in Northern Ireland

What is a Power of Attorney?

Power of Attorney is a legal document that enables one or more people to act on another person’s behalf if they lack the mental capacity to make decisions or no longer want to.

The appointed person is known as the ‘attorney’ and the person giving someone Power of Attorney is also known as the ‘donor’.

A Power of Attorney can allow you to make decisions regarding a loved one’s personal welfare, health, financial affairs and their property.

For example, if your spouse is diagnosed with dementia, setting up a Power of Attorney can grant you the power to make decisions regarding their living situation and treatment in the future when they are no longer able to.

Attorneys are always required to act in the donor’s best interest. Attorneys must always keep accounts of financial decisions and keep their own money separate from the donor’s.

The person giving Power of Attorney must have the mental capacity to so at the time. Before a Power of Attorney comes into force, it must be registered with the Office of Care and Protection.

The information below applies to Northern Ireland, where General and Enduring Power of Attorney are available.

If you are looking for information about how to make a Power of Attorney in England and Wales or Scotland, follow the links below.

Power of Attorney in England and Wales

Power of Attorney in Scotland

What does mental capacity mean?

A person that has their mental capacity is considered to be able to make their own decisions about their care and treatment as well as finances and property matters and applies to people aged 16 and over.

Northern Ireland’s Mental Capacity Act (NI) 2016 states that a person lacks mental capacity if they are:

• Unable to make a decision for himself or herself about the matter, because of an impairment of, or a disturbance in the functioning of, the mind or brain.

The person must be unable to understand the decision, retain the information, appreciate and use and weigh the information and communicate the decision.

If the person is unable to communicate their decision in any way, they should be treated as lacking the mental capacity to make the decision.

For example, people who may lack their mental capacity could be:

• A parent living with dementia
• A person who suffered brain injuries following an accident
• People with learning difficulties
• People with mental health problems or physical disabilities

People may still be able to make some decisions even if they have a specific condition. For example, an older person receiving care at home may very well be able to make decision about their care, but unable to manage finances relevant to the service.

In any case, the attorney must make decisions in the best interests of the donor, which starts with considering what decision the donor would have made if they had the capacity to do so.

Types of Power of Attorney and what they allow you to do

In Northern Ireland, there are two types of Power of Attorney. They are General Power of Attorney (GPA) and Enduring Power of Attorney (EPA). They can be used to give one or more people the authority to manage a person’s property and financial affairs for a limited time or if they lose their mental capacity.

You can grant someone Power of Attorney at any time if you are aged 18 or over and have the capacity to understand what it means.

There is no Health and Welfare Power of Attorney in Northern Ireland. Making decisions regarding the welfare of a person is the responsibility of the next of kin.

General Power of Attorney (GPA)

A General Power of Attorney, also known as Ordinary Power of Attorney, is best suited when a person needs to give someone the power to temporarily manage their property or money.

A GPA cannot be used in situations where the donor is mentally incapable of making their own decisions, for example if they are living with dementia or have suffered from a brain injury.

The GPA can be used if the donor goes on holiday or is admitted to hospital for a limited time and they need someone to act on their behalf in the meantime.

A GPA ceases when the donor becomes mentally incapable. If a person has been diagnosed with an illness that could result in mental incapacity or it is believed they will develop a health problem that will cause them to be unable to make their own decisions in the future, an Enduring Power of Attorney should be used instead.

Enduring Power of Attorney (EPA)

An Enduring Power of Attorney lets the attorney act on the donor’s behalf if the donor is mentally incapable to make their own decisions.

The EPA enables the attorney to manage the donor’s property and financial affairs if the donor loses their mental capacity due to, for example, dementia or old age. This enables the attorney to use the donor’s assets to finance their care, such as residential or nursing care.

An EPA must be put in place before the donor loses their mental capacity but can be used at any time after its registered unless otherwise stated, although registration is not needed before the attorney considers the donor to be unable to manage their affairs.

The attorney’s powers can be put under certain restrictions. For example, the donor can choose to only allow the attorney to manage bank accounts, bills and insurances, but not sell or buy property.

An EPA can be cancelled or amended at any time while the donor is mentally capable to make their own decisions.

When is the right time to make a Power of Attorney?

There is no wrong time to make a Power of Attorney, in fact, it is advisable to do so in case you lose your mental capacity. Doing this gives you control over who makes financial decisions on your behalf without delay should something happen to you.

As an EPA must be registered with the Office of Care and Protection before it can come into effect, it is wise to do this pre-emptively to avoid any delays if the donor becomes incapable to make their own decisions. If this is done, you can avoid potential issues such as late payments or debts building up.

Plan for the future – if you have been diagnosed with an illness that may cause you to lose your mental capacity in the future, such as dementia, you should make a Power of Attorney. This will bring you peace of mind as it ensures someone you trust will take care of your financial affairs when you are no longer able to.

If you do not have an EPA in place when you lose your mental capacity, it can be very complicated and costly for your loved ones to have a controller appointed.

Keep in mind that an EPA can be cancelled or amended an EPA at any time while you are mentally capable if you change your mind, the attorney does no longer want to act on your behalf, or something happens to the attorney that means they won’t be able to fulfil their duties.

How to make a Power of Attorney in Northern Ireland

You can set up a Power of Attorney in Northern Ireland through a solicitor, a will writer or the Office of Care and Protection (OCP), which manages Power of Attorney in Northern Ireland.

The application for registration of an EPA to the Office of Care and Protection is £151.

Attorneys are required to give notice to a minimum of three of the donor’s relatives. If the attorney is a notifiable relative, they can be counted as having been notified.

Relatives must be notified in the following priority:

• The donor’s spouse
• The donor’s children
• The donor’s parents
• The donor’s brothers and sisters, whether of the whole or half blood
• The widow or widower of a child of the donor
• The donor’s grandchildren
• The children of the donor’s brothers and sisters of the whole blood
• The children of the donor’s brothers and sisters of the half blood
• The donor’s uncles and aunts of the whole blood
• The children of the donor’s uncles and aunts of the whole blood

If the donor has already lost their mental capacity, there is no way to put an EPA in place. You will instead have to apply for a controllership order through the OCP.

A close relative normally acts as a controller but could also be a friend or solicitor. As being a controller can be extremely demanding, the OCP can appoint a solicitor if no one suitable can be found.