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Why errors when filling in legal forms can be costly

Enduring power of attorney is very useful to help care for aged relatives but they are legal documents and can be rigid

When your parents filled the power of attorney form, they were presented with choices at various points. Photograph: iStock

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Dominic Coyle
Tue May 14 2024 - 05:15

Because it seemed the right thing to do, I encouraged my parents to put enduring powers of attorney (EPOAs) in place. Our mother signed a power of attorney a number of years ago and we exercised the EPOA last year when she knew that she was not in a position to manage her affairs due to age-related dementia.

The EPOA provides that my sister and I are joint attorneys. Therein lies the problem. When dealing with a joint EPOA, banks and other financial institutions require that both attorneys attend in person in a branch to conduct transactions.

It took 57 working days and two formal complaints for one bank to register the EPOA on our mother’s accounts. I have a further complaint in process because I was promised monthly statements (in the absence of online access which is not permitted for joint EPOA’s) which never arrived.

Our experience leads to two conclusions:

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1. Current banking practices implemented to “improve service” (and save costs) present severe logistical challenges for joint attorneys in managing the dependent person’s affairs; and

2. Banks and other financial institutions do not have adequate procedures for handling EPOAs. Attorneys are asked to complete forms which are designed for completion by customers. Bank staff are not adequately trained to deal with EPOAs and banking systems have not been tailored to process EPOAs correctly.

My purpose in writing to you is:

1. So that you might alert others with a joint EPOA in place to consider other options before exercising the EPOA;

2. So that you might alert solicitors to these difficulties (our solicitor was surprised at these restrictions);

3. Our mother has spoken to us of her intention that I should “look after her money” whereas my sister would look after her health-related decisions. Are there any options for changing the EPOA now that it has been exercised?

Mr J.F., email

There are all sorts of things wrapped up in this query but your frustration at trying to do what is right by your parents only to discover how difficult it is proving to be rings clear.

First up, will an enduring power of attorney where there is more than one attorney inevitably require you to be bound tightly to the other attorney for every basic function – like a bank transaction? No, but it does require planning.

When your parents filled the power of attorney form, they were presented with choices at various points. One of these was to inquire whether they wished their attorneys to act “jointly” or “jointly and severally”.

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If she, with or without the advice of her legal adviser at the time, ticked the former, then, yes, you will both be required to be present for every basic transaction and, due to the limitations of at least one of the Irish banks, will be deprived of the option of online banking.

If she had ticked the latter, either attorney can carry out such functions without the other being present, and every Irish bank will allow at least one attorney, acting joint and severally, to use online banking.

However, it is true that, in all cases, financial institutions, including banks, will require both attorneys to be present for the formal certification of documents after the power of attorney is registered.

The issue here is how the original form was completed and is a salutary lesson on the need for care and attention at that point in the process. You would have been notified at the time and, if memory serves, would have seen a copy of the document.

Had it been caught then, it could have been amended. Now it is too late. She no longer has the mental awareness to be allowed to sign such a form and the current one has, in any case, been registered. You are unfortunately stuck with it. As you say, if people become aware of how restrictive this might be they can choose not to activate the power of attorney, though that presents its own problems

One other thing, regardless of your mother’s comments, enduring powers of attorney cover financial, property and personal issues, not health-related ones. Health support requires a separate instruction.

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If this information surprises your solicitor, my best advice is to change solicitor. This is basic stuff and they should be perfectly familiar with it. I am certain their legal colleagues would be unimpressed.

As for the banks, you are correct. These enduring power of attorney forms are legal documents and are inevitably handled by a back office with specialist knowledge that each bank has in place.

The people in branches are, by nature, generalists. I found one in the bank you mentioned who was excellent but others who were shocking. And lest you think the specialist back offices are any better, my experience with one bank was that they were not.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice

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