Why make an Enduring Power of Attorney
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• If something were to happen to you and you could no longer manage your affairs would you want the Wards of Court office to make all decisions on your behalf or would you prefer your family to make those decisions.. Decisions like where you would live and what would happen to your property and all personal and financial decisions.

• An enduring power of attorney allows you to nominate someone (your attorney) to manage your affairs if you become incapable of managing your own affairs. For example this could happen if you had a stroke or an accident or some other catastrophic event. You can appoint a family member or members to make all decisions on your behalf but you can only make that appointment when you are well by signing an EPA.

• You can only make an EPA when you are well. Your solicitor and your doctor both have to certify that you have the mental capacity at the time of execution to understand the effect of creating an EPA. The EPA has no effect unless and until you become unable to manage your affairs. Your attorneys would have to register the EPA. before it would become effective. 

• In the past if someone became incapable of managing their affairs the only option was to make that person a Ward of Court. The High Court would then make all decisions for the Ward. Making someone a Ward of Court is an expensive and invasive process and your family loses all control over your affairs.

• In some circumstances you may be estranged from your family and you may want your friend or your partner to manage your affairs. An EPA allows you to do this

• Many young and middle aged people are now making enduring powers of attorney. as catastrophic events can happen to people of all ages. 

 
Don't leave it too late to make an EPA. If you need any advice call us on 01-6040033 or email us for appointment by clicking this link
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If you decide to take a lease of a shop or commercial premises you need good practical advice. If you employ us you can be sure that we will ask all of the questions that need to be asked and we will make sure that there are no nasty surprises waiting for you when you open your doors. That means that you can get on with your business.

The issues that we will deal with include the following:

• Is there insurance on the property and who pays what percentage of the insurance premium?
• Does your landlord have a mortgage on the building?. If so we will insist that his bank gives its consent to the creation of your lease. If consent is not obtained and the Landlord falls into arrears the bank can evict you from the premises. If they consent then they have to honour your lease. 
• Is there planning for your proposed  use of the building? If there is a material change of use then planning permission will be needed and this should be a matter for your landlord.
• We will examine your landlord's title to make sure that he or she has the right to grant your lease and we will make sure that there are no restrictions on your use of the property. 
• We will make sure that there are no arrears of rates or other outgoings. These should be paid in full by your landlord on closing.
• We will advise you on the terms of your lease and in particular on your obligation to carry out repairs to the property. In some cases a tenant will be responsible for internal and external  repairs and in other cases the tenant will be responsible for internal repairs only. This will depend on the building and the terms in your lease. 
• We will check to see if you are liable to pay VAT on your rent or on the creation of your Lease.
• We will make sure that no notices have been served on the landlord by the local authority that might affect the property.
• If you take a short term lease we will advise you on whether you will have a right to renew your Lease at the end of the term.

If you are in interested in taking a commercial lease talk to us and make sure that you only have to worry about your business.

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​WHY MAKE A WILL?

• If you make a Will you are deciding where your assets are to go after your death. You can leave your property, money and other assets to the people you want. Without a Will, your assets will be divided in accordance with the Succession Act, 1965 and this division may not coincide with your wishes. You may also want to leave some personal items to certain family members. You may want to leave some money to charity. You can only do that by making a Will.

 

• There are also situations where it is vital that you make a Will. Unmarried partners cannot inherit from each other unless there's a Will. So if you live with your partner and you die without having made a Will, your partner will not automatically inherit any of your estate. If you are unmarried and wish to provide for your partner on your death, you can only do this by making a will.

 

• If you have young children you can choose your children's legal guardians. If you don't specify anyone, it will be left to surviving relatives to decide who looks after your children, and it may be someone you yourself would not have chosen. It also confers important rights on that person to make all the important and personal decisions in your children's lives. You can also appoint trustees to look after their inheritance while they are still children.  

 

• You can ensure that your Will is tax efficient. Tax may be payable on an inheritance. Every beneficiary has a tax free threshold. The threshold is determined by the relationship with the deceased. A child can inherit up to €310,000 from a parent without a liability. A brother or sister or niece or nephew can inherit up to €32,500 without a liability. Spouses are exempt from Inheritance Tax. You might decide to leave a smaller amount to a larger number of people. The tax threshold for anyone else is €16,250. In certain circumstances previous gifts or inheritances may be taken into account. The current tax rate is 33%

 

• If your personal circumstances are complicated it is very important that you take advice from a solicitor. You may need specific advice in relation to providing for children from a previous relationship or if you have an incapacitated child. You may wish to deal with the running of your business after your death to allow for an orderly transfer of the business to the beneficiaries.

 
Make sure that you leave things in good order for your family. In most cases a very simple and inexpensive Will is all that is needed. If you need any advice call us on 01-6040033 or email us for appointment by clicking this link










Capacity Required for an Enduring Power of Attorney

One critical question to be considered when preparing an Enduring Power of Attorney is whether the person granting the Power of Attorney ("the donor") has the requisite legal capacity. The Irish Courts have begun to consider the capacity required by a donor to effect a valid Enduring Power of Attorney. Ms Justice Marie Baker in the recent High Court case "In the matter of an application for registration of an Enduring Power of attorney of SCR" outlined what a donor should understand in order to grant a valid EPA.

In that case two sisters  got a High Court order preventing their brother getting power of attorney over the affairs of their father who suffers from dementia.The sisters claimed their father did not have capacity to consent to enduring power of attorney, giving the son control over the father’s general affairs, including finances and property with no express limitations.They also claimed undue influence or fraud was used to induce their father to hand over the power.

The brother said his father was aware of what he was doing and was sufficiently aware to express concern about how a shortfall in payments to a nursing home where he was living would be met. Ms Justice Marie Baker said she was not satisfied the solicitor who drew up the documentation, and the father’s GP who certified it, had followed best practice in relation to execution of the power of attorney certificate.

The last time the GP examined the father was seven weeks before the power was executed by the man, the judge said. A month after the doctor’s last examination, the father did not have capacity and displayed signs of confusion and agitation, she said. The court heard the father had been showing signs of dementia for around two years before he was moved into the nursing home on October 22nd, 2013 under the “Fair Deal” scheme whereby the State pays the bulk of the care costs.

He had been found on the road on a number of occasions in his dressing gown and in poor weather conditions, a public health nurse said. Ms Justice Baker said his GP carried out a mini-mental health test on August 30th, 2013, in which the man scored 23 out of 30, suggestive of moderate dementia. The doctor said that score meant he was capable of basic understanding of matters at that time, the judge said. The GP noted he was not in the “worst stages of dementia” at the time and prescribed a specific drug for symptoms of Alzheimer’s although this is not believed to halt or reverse the process of cell damage that causes the disease, the judge said.

On September 10th, the last time the doctor examined him, he found the father to be lucid and showing no sign of confusion. Ms Justice Baker said it was quite apparent the GP executed the statutory power of attorney certificate on November 6th in circumstances where the doctor’s last consultation would have suggested lack of cognitive capacity.

The GP said his certification arose from “reliance on information” given by the solicitor dealing with the matter. The solicitor said the father was lucid on the day he signed the power of attorney instrument. The judge said the Powers of Attorney Act 1996 did not envisage circumstances where a doctor would rely on the opinion of a solicitor with regard to capacity, especially where a person is suffering from a progressive dementia condition as this man was.

While the legislation imposes no time limits on the execution of the power, the fact independent medical certification is required means responsibility (for certification) cannot depend on the opinion of another non-medical person, she said.
Best practice was not followed and it would have been preferable if the doctor’s certificate was based on an assessment carried out closer to the time of execution of the power of attorney, she said.

The judge said she was not satisfied the evidence as a whole showed the father was sufficiently lucid at the time to understand the nature of general power of attorney or that its scope and purpose was fully explained to and understood by him. The objection of the sisters was sustained and the court would refuse to order that the power of attorney be registered, she ruled.

Please call or email us if you would like more information in relation to Enduring Powers of Attorney.

The changes to the monetary jurisdictions of the civil courts took effect on the 3rd February 2014. These changes are provided for in Section 2(1) and Part 3 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013.

From 3rd February, the new limits of the civil jurisdictions will be:

• District Court: €15,000. 
• Circuit Court in civil proceedings (other than personal injury claims): €75,000.
• Circuit Court for personal injury actions as defined in Section 2 of the Civil Liability and Courts Act 2004: €60,000.
  

This act provides for the making of a scheme for certain dwellings affected by pyrite. It provides for the establishment of the Pyrite Resolution Board to manage the implementation of the scheme. The scheme is only at outline stage and is subject to approval by the minister.


Outline of the Proposed Scheme

The general aim of the scheme is to procure the remediation of private dwellings with significant damage caused by pyritic heave of hardcore under floor slabs.

The following conditions must be satisfied for a dwelling to be deemed eligible for remediation under the scheme:

• Dwellings must be located in one of the five local authority areas of Fingal, Dublin City, Meath, Kildare and Offaly;
• Dwellings must have been constructed between 1st January 1997 and 1st July 2012;
• The dwelling must have been purchased or built on the applicant’s own site between  1st January 1997 and 1st July 2012;
• Dwellings must have been occupied before 1st July 2012;
• Dwellings must have been assessed, tested and certified as having significant damage attributable to pyrite heave, in accordance with  Irish Standard 398–1: 2013;
• The application must be accompanied by a Building Condition Assessment carried out by a competent person and presented in the format set out in Annex A, pages 28 to 33, of the above standard;
• The application can be made by or on behalf of the owner of the dwelling;
• It must be shown to the satisfaction of the Pyrite Resolution Board that there is no other viable avenue of redress open to the applicant.

      Note: Unfinished houses or those that were never sold are not covered by this scheme.

Once a dwelling is deemed eligible and is included in the Pyrite Remediation Programme, the following costs will be met out of the Pyrite Remediation Fund:

• The sampling, testing and reporting of the hardcore;
• The Categorisation Report on the dwelling in accordance with I.S. 398-1: 2013;
• The preparation of specification and scheduling of remediation works in accordance with I.S. 398-2: 2013;
• The management of the tendering process and commissioning of the remediation works;
• The remediation of the dwelling as per specification and schedule to the required standard;
• The monitoring and inspection of works, snagging and final certification.

Local Property Tax - Surcharge


We would advise our clients that they may face a surcharge in respect of Income Tax, Corporation Tax or Capital Gains Tax
even if those returns are filed on time but a Local Property Tax return or payment is outstanding.

The Revenue Commissioners issued the following notice on the 8th August 2013.

"If you file your Income Tax, Corporation Tax or Capital Gains Tax Return on time, but at the date of filing:

• you have failed to submit your Local Property Tax (LPT) Return or,
• you have failed to pay the LPT due or,
• you have not entered into an agreed arrangement to pay the LPT due,

a surcharge of 10% of the IT/CT/CGT liability will be applied to your notice of assessment automatically.

Anyone who has household charge arrears/LPT of €200 will also be subject to the 10% surcharge when the IT/CT/CGT Return is filed. Revenue systems will be in place in September 2013 to pay and file the household charge arrears/LPT. In the meantime, anyone wishing to pay the household charge arrears/LPT can do so by way of cheque or postal order (made payable to Revenue) which should be sent to the Local Property Tax Branch, Revenue Commissioners, PO Box 1, Limerick. It is recommended that you write the relevant Property ID and your PPS Number or Tax Reference Number on the back of the cheque/postal order. Alternatively, the €200 can be paid using your debit or credit card by calling the LPT Helpline on 1890 200 255."

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Most of the cases dealt with by the Private Residential Tenancies Board (PRTB) last year related to landlords retaining deposits. The board’s annual report, recently published, revealed that 37 per cent of applications dealt with deposit retention and it remained the most common reason for parties seeking dispute resolution.

“A landlord is only entitled to retain a deposit where there is damage in excess of normal wear and tear, or where there are rent arrears or utility bills outstanding,’’ said the report.

In all, the board received 2,272 dispute applications, with 836 of those dealing with deposit retention and 719 rent arrears. “Rent arrears is the most common reason for a landlord to refer a dispute,’’ said the report. “Tenants are required by law to pay their rent when it falls due, regardless of whether or not they are in an ongoing dispute with their landlord.’’