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Are your affairs in order? Legal issues affecting ageing

Very often in our prime years, we forget to plan for the future. We have a huge mental block when it comes to ageing. Everyone is getting older but in our minds we are not.  So we put off organising our affairs. Deep down it is a taboo subject. DON’T THINK ABOUT IT AND IT WILL GO AWAY OR WE WILL DO IT TOMORROW. But for some of us tomorrow will never come. So, if you haven’t done anything to date, now is the time to think about what you need to do to protect yourself and your family in the coming years. Retiring is about enjoying yourself and having the freedom to do the things that you have always wanted to do.

There are a few small but important legal matters that we recommend you attend to now in order to put your affairs in order:

It is vitally important that you make a will as soon as possible. A will is a legal document setting out how you would like your assets to be dealt with on your death.  We recommend that every person over 18 years of age makes a will. By making a will you will appoint someone whom you trust to handle your affairs on your death. If you do not choose this person in your will, the person who can take out the Grant of Administration is determined by law and may not necessarily be the person you would have chosen. By making a will you can also choose to whom your assets will pass on your death. If you do not make a will, once again, the law determines who is to get your assets. Your will does not prevent you from dealing with your assets when you are alive but it does ensure that on your death they are dealt with exactly the way you would want them to be.

Most people don’t foresee the difficulties that may lie ahead of them in the event of them becoming physically or mentally incapable of managing their own affairs.  For example, if you hurt your leg and became housebound, who would collect your pension and deal with your banking affairs? Day to day matters can be dealt with by means of a simple Power of Attorney. In this Power of Attorney you would give another person the right, on your behalf, to do various things for you.  This Power of Attorney remains valid as long as you are still mentally capable of managing your own affairs.

It is for that very reason that, when you are making your will, we also recommend that you sign a document called an Enduring Power of Attorney. In this Enduring Power of Attorney you would give one or more persons, called your Attorneys, the power to do things and make certain decisions on your behalf. For example, what medical treatment you should receive or where you should live. The difference between this and an ordinary Power of Attorney is that it has no effect whatsoever while you are still mentally capable of managing your own affairs. At any time in the future, if you become incapable by reason of a mental condition of managing and administering your own affairs and property then your Attorney would apply to the High Court in order to have the Enduring Power of Attorney registered. Before doing this your Attorney must serve notice of his or her intention on you and your next of kin and your doctor must sign a Certificate confirming that in his opinion you are incapable by reason of a mental condition of managing and administering your own affairs and property. Once the Enduring Power of Attorney has been registered, your Attorney will be able to do things on your behalf in accordance with the powers you have given him.

Unfortunately, we are all slow about signing an Enduring Power of Attorney.  If a person has not done so and they become incapable by reason of a mental condition of managing their affairs, you would have to be made a Ward of Court. If the Registrar of Wards of Court is satisfied that you should be made a Ward of Court, they will appoint a person to look after your affairs but, once again, this may not necessarily be the person you would have chosen yourself. The procedure can be lengthy and time consuming.

Getting your legal affairs in order is not something that you should keep putting off until tomorrow. By attending to a few simple matters you will ensure that your assets will be dealt with in the way you want them to be dealt with both during your life and on your death.    Illness and death can be a difficult time for families and attending to not only your legal but also your financial affairs will lessen the burden on you in retirement and allow you to live a happy fulfilled life knowing that your affairs are in order and in accordance with your specific wishes. Do not put off until tomorrow what you should do now!

Jackie Buckley
jbuckley@hayes-solicitors.ie