An EPA is a legal document which enables you to give another person (usually a family member) the power to make decisions and sign legal documents on your behalf should you become mentally incapacitated. This includes personal care decisions relating to your general welfare.

In this way, an EPA allows your family to manage your affairs and make important decisions on your behalf. It is important to note that an EPA will only take effect once you become mentally incapacitated and can be cancelled at any time before it is activated.

We recommend that a person should consider an EPA in two situations. Firstly, if there is a concern about losing mental capacity in the future. Secondly, if they have sizeable assets or a business, that will require management if the owner has a catastrophic accident or succumbs to a life impairing medical event.

In the absence of an EPA, an application can be made for an incapacitated person to be made a Ward of Court which is cumbersome and expensive. However, the current Wards of Court system is being abolished and overhauled by the Assisted Decision Making (Capacity) Act 2015 which will result in a new legal framework for supported decision-making in Ireland.

Such rights are considered by us where a family home or farm is being transferred. Typically, a right of residence is a lifelong right for a parent to reside in their own home. This can be supplemented by rights of maintenance and support which offer further security such as an obligation to maintain the property, pay monthly maintenance and discharge household and other utility bills.

When properly used, these rights work well for both parties since they allow for a degree of flexibility and are well recognized by the courts. The rights can however have adverse tax implications, particularly where extensive lands are transferring, and the rights are charged on the entirety of the property. Such situations should be avoided in favour of charging the rights exclusively on the dwelling or a lesser portion of the land.

A common worry for families is the issue of nursing home charges and who will fund parental care in later years. To cater for this, we have designed a bespoke Personal Care Agreement to be put in place where a family member is taking on the role of caregiver. Such agreements work well for all parties and generally involve the transfer of the family home, farm or other property to the caregiver but subject to strict conditions.

Our Personal Care Agreement defines the expected level of care, identifies the party who will provide it, imposes covenants on the caregiver, specifies how such care will be funded and prescribes what happens if a parent can no longer be supported in their own home. Such agreements afford great comfort to parents while also offering certainty, clarity and security to the caregiver.

Ensuring that a will is up to date and relevant is always important, but particularly so for elderly clients. Outdated wills result in unfair and unintended outcomes and give rise to tax liabilities which might otherwise be avoided. When meeting with our senior clients, we recommend that existing wills be reviewed and, where necessary for new wills to be put in place to reflect  current wishes and changed  personal or financial circumstances. We offer a broad range of wills that cater for every circumstance.

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Also known as the Nursing Homes Support Scheme, the Fair Deal is a government initiative which provides financial support towards nursing home charges. The scheme is means tested and for this reason, it is essential that transfers of family farms or homes to the next generation are discussed at an early stage.

Even if assets are already transferred, the Fair Deal Scheme adopts a ‘look back’ approach to assessing the value of those assets. However, recent amendments to the Fair Deal Scheme capping the value of the family farm, have greatly improved the position where such transfers are to a nominated ‘family successor’. Now, the capital value of the farm can only be assessed for three years. Other amendments facilitate the sale of the family home by applying the same cap to the sale proceeds as to the home itself.

Our solicitors also handle the appointment of Care Representatives which arises where a Nursing Home Loan has been approved (under the Fair Deal Scheme), but due to lack of capacity, the client is unable to deal with the HSE. Normally the Circuit Court will sanction a family member as a Care Representative who can then complete the Fair Deal Application and grant the required security to the HSE.

Anthony Carroll have extensive experience in negotiating terms with the HSE and assisting families applying for the Fair Deal Scheme. We also advise on how to lawfully protect family assets, such as farms and family homes, where clients are contemplating the Fair Deal Scheme.

Following the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (2010 Act),legal status is now conferred on a range of contemporary relationships, which previously were unrecognised under Irish law. The 2010 Act bestows the legal status of cohabitees on couples who have resided together for periods of two years (where there are dependent children ) and five years (where there are no children of the relationship).

The 2010 Act also introduced a redress scheme for cohabitees which can have implications for unmarried couples in long term relationships by allowing a partner to make a claim on the estate of the other if the relationship breaks down, or on death. Such outcomes may not be known or intended but can frustrate wills and inheritance rights of adult children if not addressed in advance. However, if unmarried couples do wish to regulate and control their own affairs, this can be achieved by putting a Cohabitation Agreement in place which allows them to opt out of the statutory Redress Scheme. Our solicitors draft such agreements, which allow couples to regulate their financial affairs on their own terms and importantly avoid interference with wills and family succession.

Unmarried partners are at a distinct disadvantage when it comes to inheritance rights on death. Unlike married couples, cohabitants have no automatic right of inheritance on the death of their partner and a court order is required to establish such rights. This is also the case where a relationship breaks down during lifetime. It is important to note that cohabitants are regarded as strangers for the purpose of both inheritance and gift tax  and do not benefit from the usual spousal exemption when transferring assets to one another. However, a general exemption from  taxes can be obtained where assets are transferred on foot of a Court Order under the Redress Scheme. Anthony Carroll are experienced tax advisers in this area and can advise on cohabitation arrangements and the tax implications thereof.