Superior Court Rules

ORDER 129

POWERS OF ATTORNEY ACT, 1996

1. In this Order—

‘the Act’ means the Powers of Attorney Act, 1996;

‘the court’ means the President of the High Court or such other Judge of the High Court as may be assigned by him from time to time to hear applications under the Act and shall, where appropriate, include the Registrar;

‘the Registrar’ means the Registrar of Wards of Court;

‘the Regulations’ means the Enduring Powers of Attorney Regulations, 1996 (SI No 196 of 1996) as amended by the Enduring Powers of Attorney (Personal Care Decisions) Regulations, 1996 (SI No 287 of 1996).

Words and expressions shall, unless the contrary intention appears, have the same meaning as in the Act.

[SI 66/00]

Pre-Registration Applications

2. (1) The following applications may be made ex parte to the court by means of an ex parte docket:

(a) an application pursuant to section 8 of the Act for the exercise of any power created under an enduring power of attorney prior to the registration of the instrument creating such power;

(b) an application pursuant to section 9(3) of the Act referring to the court for its determination any question as to the validity of the power;

(c) an application pursuant to paragraph 4(2) of the First Schedule to the Act to dispense with the requirement to give notice of intention to make an application for registration under section 9 of the Act.

(2) An ex parte application shall be grounded upon the affidavit of the interested party or the attorney, as the case may be, and shall be lodged in the Office of the Wards of Court and shall fully set forth the facts and circumstances giving rise to the application. In particular the affidavit shall contain the following matters:

(a) the present address of the donor;

(b) the present address or addresses of the person or persons to whom notice of execution of the power has been given;

(c) the date on which the enduring power of attorney was executed;

(d) the date on which notice of execution by the donor was given;

(e) the date of completion of the statement by the attorney prescribed by Part C of the Form in the First or Second Schedule to the Regulations, as the case may be;

(f) the date of completion of the statement by the solicitor prescribed by Part D of the Form in the First or Second Schedule to the Regulations, as the case may be;

(g) the date of completion of the statement by the doctor prescribed by Part E of the Form required by the First or Second Schedule to the Regulations, as the case may be;

(h) the date on which the notice of intention to apply for registration was given to the donor, (if applicable);

(i) the date or dates upon which notice of intention to apply for registration was given to the required notice parties prescribed by the Act of Regulations, (if applicable), and the affidavit shall exhibit the power of attorney concerned and all other relevant documentation.

(3) The court may upon such application make such order as appears appropriate in the circumstances including an order adjourning the application and directing that notice of the application be served upon any person likely to be affected thereby or may adjourn such application until it makes or causes to be made such enquiries or further enquiries, if any, as it thinks appropriate in the circumstances of the case and upon such terms and conditions as appear just.

[SI 66/00]

Application for Registration

3. (1) An application for the registration of an enduring power of attorney shall be made to the Registrar by lodging an application for registration in the Office of the Wards of Court and shall be grounded upon the affidavit of the attorney or attorneys seeking such registration. Such application shall, as far as practicable, be in the Form No 1 as set out in the Appendix hereto.

(2) An affidavit grounding such an application shall fully set forth the facts and circumstances giving rise to the application. In particular the affidavit shall contain the following matters:

(a) the present address and marital status of the donor;

(b) the present address or addresses (if known) of the person or persons to whom notice of execution of the power has been given;

(c) the date on which the enduring power of attorney was executed (if known);

(d) the date on which notice of execution by the donor was given (if known);

(e) the date of completion of the statement by the attorney prescribed in Part C of the Form in the First or Second Schedule to the Regulations, as the case may be;

(f) the date of completion of the statement by the solicitor prescribed by Part D of the Form in the First or Second Schedule to the Regulations, as the case may be;

(g) the date of completion of the statement by the doctor prescribed by Part E of the form required by the First or Second Schedule to the Regulations, as the case may be;

(h) the date upon which notice of intention to apply for registration was given to the donor;

(i) the date or dates upon which notice of intention to apply for registration was given to the Registrar and the required notice parties prescribed by the Act or Regulations;

(j) aver that the enduring power of attorney has not been interfered with or altered in any way since it came into the possession of the attorney and shall aver as to the date and manner in which it came into the possession of the attorney concerned;

(k) a statement that a registered medical practitioner has certified that the donor is or is becoming incapable of managing or administering his or her own property and affairs;

(l) that there is no other person to whom notice is required to be given by virtue of the provisions of the First Schedule to the Act; and the application shall have annexed to it the power of attorney concerned, any medical certificate issued pursuant to section 9(4) of the Act, any relevant notices (or copies thereof, if available), referred to above and any other relevant documentation.

(3) The application for registration shall be served on the donor personally and on all other parties who either have or should have received notice of an intention to apply for registration. Save for service on the donor such service may be effected by pre-paid registered post to the usual or last known place of residence of the person to whom it is to be given or by personal service or in such other substituted manner as the court may allow as being appropriate in the circumstances on an ex parte application for that purpose.

(4) The court may, or where appropriate, the Registrar may in any case require such proof of service of the notice of the applicant’s intention to seek the registration or of any other notice sent or purportedly sent to any person in any case in which it appears necessary to do so and may adjourn such application until such service or notification, as the case may be, has been proved to the satisfaction of the court or the Registrar, as the case may be.

(5) In any case to which section 10(2) of the Act applies the court may adjourn the application for registration until such enquiries as it makes or as it causes to be made are completed and may give such direction in relation to any enquiries which it thinks appropriate as appear necessary in the circumstances of the case.

(6) In any case in which a valid notice of objection to the registration has been given or for other sufficient reason the court may require such party objecting to the registration to file an affidavit or affidavits in support of the grounds of objection and the person concerned shall comply with the directions of the court in relation to such matters. Notice of objection shall, as far as practicable, be in the Form No 3 or No 4 as the case may be.

(7) In any case in which it appears necessary in the interests of justice to the court to do so, it may direct that an issue or issues arising in relation to an application for registration or an objection thereto be heard on oral evidence and may give such directions concerning the exchange of pleadings, or the making of discovery as appear necessary and proper in the circumstances of the case.

(8) In any case in which an objection to an attorney or to a power is established but an enduring power subsists as respects an attorney who is not affected thereby, the court shall direct the registration of the enduring power of attorney by qualifying the registration by specifying in its order that the power concerned shall not be exercisable or shall be exercisable subject to conditions or, as the case may be, that the attorney concerned shall not exercise or purport to exercise the power originally intended to be granted and the power of attorney shall thereafter be subject to such qualification as is specified in the order.

[SI 66/00]

Post- Registration Applications

4. (1) Subsequent to the registration of an instrument an application:

(a) to disclaim a power pursuant to section 11(1)(b) of the Act, or

(b) for the exercise by the court of any power conferred by section 12(2) to (6) inclusive of the Act; shall be made by notice of motion to the court and shall be lodged in the Office of the Wards of Court. Such motion shall as far as practicable be in the Form No 2 as set out in the Appendix hereto and shall be grounded upon the affidavit of the moving party which shall fully set forth the facts and circumstances giving rise to the making of the application.

(2) The provisions of sub-rules 2 to 9 [sic] inclusive of rule 3 shall apply mutatis mutandis, where applicable, in relation to any application brought under this rule.

[SI 66/00]

The Registrar

5. (1) The Registrar shall keep and maintain a register in which he shall register all instruments which are entitled to be registered as an enduring power of attorney under the provisions of the Act. Such register shall record the date of application for registration, the date of registration, any qualification specified by the court in relation to a registration and any applications with regard to the revocation or cancellation of the registration of an instrument.

(2) The Registrar shall maintain a cause book in which all applications made under the Act in relation to any enduring power of attorney (whether registered or unregistered) and the outcome of same shall be recorded. Such cause book shall only be available for inspection by the applicant, the donor, any person on whom a relevant notice has been served or such other person as the Registrar may, in his discretion, permit.

(3) The Registrar shall keep and retain in the Office of the Wards of Court an attested copy of all enduring powers of attorney lodged with him for the purpose of registration or which are lodged in court for the purposes of any application under the Act and shall supply attested copies to any person entitled to same pursuant to section 11 of the Act.

(4) The Registrar may, in any case in which it appears appropriate to do so, issue a certificate certifying that an applicant for registration has been made but not yet determined or that an application has been made which has resulted in the registration of the instrument to which it relates and such certificate may be given in the Form No 5 in the Appendix hereto as may be appropriate.

[SI 66/00]

6. The costs of any application to the court or any objection to any application shall be in the discretion of the court.

[SI 66/00]

Subscribe to our newsletter

Please enable the javascript to submit this form

Contact

Lonsdale Law Publishing

Lonsdale House

Avoca Avenue

Blackrock

Co. Dublin

 

Office Open: Monday – Friday | 9 a.m. – 5.30 p.m. (Irish time) | Tel: +353 (0)1 278 5090 | E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.