If you are looking to set up a Power of Attorney for someone living in Northern Ireland, it’s worth remembering that some aspects of the agreement and document are different to the one for England and Wales
If you or your loved one is living in Northern Ireland and you need to create a Power of Attorney for them, the version you make will be slightly different to one you would make if you were living in England or Wales, although it essentially provides the same powers.
It might be a good idea to read the information provided in the rest of our LPA articles, and then read this article so you’re aware of the few differences.
In England and Wales, there are two types of power of attorney which you can set up. These are Property and Finance LPA and Health and Welfare LPA.
However, in Northern Ireland there is only one type of Power of Attorney when it comes to dementia and loss of capacity. This is known as Enduring Power of Attorney and it deals with the control of finance and property. There is no Health and Welfare Power of Attorney in Northern Ireland.
Enduring Power of Attorney Order (Northern Ireland) 1987
The law that governs power of attorney and mental capacity in Northern Ireland is known as the Enduring Power of Attorney Order (Northern Ireland) 1987. It’s designed to protect and safeguard people who have or may go on to lose capacity. A similar version in England and Wales would be the Mental Capacity Act 2005.
Office of Care and Protection (OCP)
This is the organisation that manages Power of Attorney in Northern Ireland. In England and Wales, it is known as the Office of the Public Guardian.
When you register an EPA
In England and Wales, you are encouraged (both as a donor and attorney) to register the Lasting Power of Attorney as soon as it is signed and if possible, before the person has lost mental capacity. However, in Northern Ireland, the general practice is that you do not apply to register the EPA until just as or just after the donor becomes mentally incapable.
Attorneys can begin acting on behalf of a donor with the donor’s consent in financial matters as soon as the document is signed and witnessed, i.e. on a general capacity, unless the EPA specifies otherwise. In some cases, donors will stipulate in the EPA that they don’t want the power to be used until after it is registered.
In England and Wales, it is optional whether you wish to notify anyone that you are filling out and registering a Lasting Power of Attorney. They then have the choice on whether they wish to object to the LPA or not.
In Northern Ireland, attorneys must give notice of an intention to register an EPA, to at least three relatives of the donor. There is a strict order of who should be notified first, which is:
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 doesn’t have three living relatives who fall into the above list, then this should be noted on the application. If the attorneys also happen to be notifiable relatives, you can count them as having been notified.
Controllers v Deputies
In Northern Ireland, if there is no Enduring Power of Attorney set up and the person with dementia has already lost their mental capacity, then you will need to set up what is known as a Controllership, through the OCP.
Much like deputies, Controllers can be a friend or solicitor, however other similarities include it being far more expensive and time-consuming than an EPA, so it’s always worth setting up an EPA before someone loses mental capacity if possible.
Registering an Enduring Power of Attorney in Northern Ireland costs £115 compared to £110 in England in Wales. However, you will only ever register one Power of Attorney as there is no agreement covering Health and Welfare in Northern Ireland.
What’s the same?
Age limits for attorneys
In England and Wales, the attorneys need to be at least 18 years old in order to take up their role and this is the same for attorneys in Northern Ireland. Other attorney prerequisites also remain the same, including being financially soluble, responsible and able to act in best interests.
Powers and responsibilities
The Enduring Power of Attorney laws in Northern Ireland are designed to help you manage and look after the interests of someone who can no longer make decisions for themselves.
As with England and Wales, acting as an attorney means making decisions that follow similar principles as it is a position based on absolute trust. They must benefit the person, take their wishes into account, and be the least restrictive ones possible. Relevant people must be consulted if appropriate and the person who you’re making the decision for must also be encouraged to partake if possible, particularly if you think they may regain some capacity on another day.
Acting jointly and severally
Much like in England and Wales, attorneys on a Northern Irish EPA can be instructed to act jointly, severally or jointly and severally. If the attorneys are only allowed to act jointly, this means they must all act together when making decisions for the donor.
In an EPA, you can provide general authority and specific authority. General authority means the attorney can carry out any transactions on behalf of the Donor. A specific authority allows the attorney to deal only with specific aspects of the Donor’s affairs.
Restrictions and conditions
The donor can impose certain restrictions and conditions on what the attorney can do in certain areas, or when the powers can be used.
NB: Unfortunately, Unforgettable’s Lasting Power of Attorney Service only helps to create an LPA for those living in England and Wales. If you live in Northern Ireland and wish to set one up, please click here.