For too long relatives of the sick or elderly could only stand idly by while one close to them slipped
into a state of mental incapacity, without having made provision for the management of their affairs.
Such a scenario which commonly persists for a period of years often arose out of a fear of disposing
of, or relenting of control of one’s property prior to death for fear of subsequent neglect. The resulting
position where often large farms or enterprises are left in a limbo, in circumstances where the key
player is without mental capacity will usually prejudice members of the family employees the
enterprise and the unfortunate person themselves. It is the objective of this article to explore to what
extent this problem has been redressed by Part II of the Powers of Attorney Act 1996 and the
regulations made thereunder, and to look at the steps to be taken by practitioners under the
legislation. The essential difference between creating an enduring power of attorney and bringing a
petition to have one made a ward of Court Lunacy Regulation (Ireland) Act 1871; O.67 of the Rules of
the Superior Courts 1986. is that the enduring power is created by the donor while still of full capacity
in anticipation of the onset of difficulties. In this way, the power can be created but only becomes
effective when incapacity is certified.