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Ask Buachaill Your Own Question
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10590
Experience:  Barrister 17 years experience
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Regarding Enduring Power of Attorney and protecting a family

Customer Question

Customer: ***** ***** regarding Enduring Power of Attorney and protecting a family home
JA: Thanks. Can you give me any more details about your issue?
Customer: I have EPA for my elderly Aunt who is terminally ill and I'm also the sole benificiary in her will. However I just found out that during probate Social Protection will probaly get possesion of the family house & property for repayment of her old age pension that she wasn't qualified to recieve.
JA: OK got it. Last thing — JustAnswer charges a fee (generally around $18) to post your type of question to Republic of Ireland Law Experts (you only pay if satisfied). There are a couple customers ahead of you. Are you willing to wait a bit?
Customer: sorry can't wait
JA: OK. Now I'm going to take you to a page to place a secure deposit with JustAnswer. Don't worry, this chat is saved. After that, we will finish helping you.
Customer: how long ?
Submitted: 1 year ago.
Category: Republic of Ireland Law
Customer: replied 1 year ago.
As her Attorney under the EPA what can I do prior to her death - and losing home & property during probate to pay back Social Protection - to keep the home and property - which also honors the wishes of her will ?
Customer: replied 1 year ago.
As her attorney under the EPA can I somehow transfer, gift or sell (under market value) the home & property to myself - or put it into joint ownership (my Aunt & myself) - so it won't be lost during probate ?
Expert:  Buachaill replied 1 year ago.

1. It is a fundamental principle of the law relating to Powers of Attorney that the donee of the power, or the person exercising the power, cannot personally take any benefit from the exercise of the power. Accordingly, as you hold the benefit of the power of attorney you cannot personally benefit from any exercise of the power of attorney. So you cannot transfer, gift or sell anything belonging to your elderly aunt, to yourself. Otherwise this can be set aside in law should it be questioned. This means that if the Dept. of Social Protection query any such transfer, gift or sale, it would get set aside. So this is not the way to deal with the difficulty arising from the incorrect claiming of the pension. You can transfer the house or assets to someone else lawfully, but then you cannot indirectly benefit yourself.

Expert:  Buachaill replied 1 year ago.

2. Please RATE the Answer positively as unless you RATE the Answer, your Expert receives none of the money you have paid the website so there is no incentive to answer any further questions.

Customer: replied 1 year ago.
I can give the house & property as a gift to my wife or any one else who's not on the EPA ?
Expert:  Buachaill replied 1 year ago.

3. A gift would not be a proper exercise of the power of attorney as that would be disposing of the assets without any corresponding benefit, so it would not be in the best interests of the person whose assets they are. However, you can transfer the house or property to your wife.

Customer: replied 1 year ago.
What do you mean by "transfer" if I can't give a gift - do you mean sell ?
Customer: replied 1 year ago.
Answer extremely unsatisfactory - how do I get a refund ?
Customer: replied 1 year ago.
REFUND ????????????
Customer: replied 1 year ago.
I'm about to sue for breach of contract due to not issuing a refund - can you recommend a good solicitor ?