How Do I Make an Enduring Power of Attorney in Northern Ireland?

Who this guide is for

People in Northern Ireland who want to make or register an enduring power of attorney, attorneys, and people worried about someone who can no longer manage their property and affairs.

What this guide does not cover

• England, Wales or Scotland: see the England and Wales guide or the Scotland guide.
• Who makes health, care or treatment decisions for someone who cannot make them: this guide does not cover it. Ask a solicitor or the Health and Social Care Trust.
• Wills, inheritance and what happens when someone dies: this guide does not cover them. Ask a solicitor or Advice NI.
• Court fees, the controller application forms and how controllers are supervised: this guide names the route only. Ask the Office of Care and Protection or a solicitor.
• Care needs assessments and paying for care: use the social care checker.

The questions that decide the answer

1. Where does the person live? Northern Ireland: this guide. England, Wales and Scotland have their own guides.
2. Can the person still understand what an enduring power of attorney is? Yes: they can make one now. No: it is too late, and a controller may be needed.
3. Is there already an enduring power of attorney? Yes: check whether it needs to be registered (see below). No: see "If there is no enduring power of attorney".
4. Is the question about money and property, or about health and care? Money and property: this guide. Health and care decisions: not covered here.

Enduring power of attorney

• An ordinary power of attorney ends when you become mentally incapable of managing your affairs. An enduring power of attorney carries on.
• You can make one at any time if you are over 18 years of age and mentally capable of understanding what an enduring power of attorney is.
• You should get legal advice on the range of powers to give your attorney. You can limit the power to certain parts of your affairs, for example handling your money but not selling your house.
• If you appoint more than one attorney, you decide whether they act jointly (all together) or jointly and severally (together or separately).
• If you set no restrictions or conditions, your attorneys can act as soon as they have signed. You can say they cannot act until you become mentally incapable or until the power is registered.
• You can cancel or change your enduring power of attorney at any time while you are mentally capable.

Registering it

• Registration with the High Court (Office of Care and Protection) is not needed until your attorney believes you are no longer capable of managing your affairs.
• If your attorney has reason to believe you are becoming mentally incapable, they will have to apply to the Office of Care and Protection to register the power.
• You will be told about the application. The court may question how the attorney has handled your affairs and may cancel the power if it is not satisfied the attorney is acting in your best interests.
• Once it is registered, an enduring power of attorney cannot be cancelled effectively unless the court confirms the cancellation.

Lasting powers of attorney

Part 5 of the Mental Capacity Act (Northern Ireland) 2016 provides for lasting powers of attorney, but it is not in force yet. Until it is, you cannot make a lasting power of attorney under Northern Ireland law.

If there is no enduring power of attorney

• If someone cannot manage their property and affairs and has no enduring power of attorney, a person can apply to the Office of Care and Protection for the court to appoint a controller.
• A controller can do what the court orders, directs or authorises about the person's property and affairs. If no one else is available or willing, the court can invite the Official Solicitor to act as controller.
• In Northern Ireland you cannot apply to be someone's deputy: the route is a controller.

Worried about an attorney or controller

• The Office of Care and Protection investigates situations made known to it where the property or money of an incapable adult appears to be at risk.
• It also supervises people appointed to manage the money and property of adults who cannot do it themselves.

Deadlines

This guide gives no deadlines. For how long registration takes, ask the Office of Care and Protection.

Money figures

This guide gives no money figures. The Office of Care and Protection charges court fees, including for registering an enduring power of attorney and for controller applications: check the current fees on the Department of Justice website or with the office.

Traps

• Using the England and Wales rules: lasting powers of attorney, the £92 fee and the Office of the Public Guardian do not apply in Northern Ireland.
• Expecting an enduring power of attorney to cover health or care decisions: it covers property and affairs.
• An ordinary power of attorney stops working when you lose capacity: only an enduring one carries on.
• A deputy is not the Northern Ireland route. Without an enduring power of attorney, the route is a controller.