What is an enduring power of attorney and why should I make one?

There are two types of power of attorney

i. General power of attorney is a legal document where you give another person (known as your Attorney) the power to make decisions and sign legal documents on your behalf. It can be limited to signing one document or it can cover all of your property. You can cancel this power at any time

ii. An Enduring Power of Attorney is a legal document that only takes effect when you lose the ability to make decisions. A person should think about making an Enduring Power of Attorney if they are worried about losing capacity or if they are suffering from an illness that could affect their capacity in the future

Everyone should think of making a Power of Attorney, it is a two step approach. It can only be relied upon by your Attorney, if and only when you lose capacity and this is certified by a doctor. It must be registered with the High Court by your Attorney. Only then does the Attorney have the power to make decisions and sign legal documents on your behalf. Until then, it has no effect and you can cancel the Enduring Power of Attorney.

Choosing your Attorney – You are free to choose your Attorney. You may choose a spouse, partner, friend, family member, colleague or other person. You may choose more than one person to act as your Attorney. If you chose more than one person, you can direct them to act together or allow them act separately.

Notice parties – you are obliged to give notice to two persons that you have made a power of attorney, these must be first your close family.

How to make an Enduring Power of Attorney

An Enduring Power of Attorney must be completed according to strict legal guidelines. It must be signed by you, then by your Attorney or Attorneys. Your doctor and solicitor must also sign a declaration to say that you have capacity to make an Enduring Power of Attorney.
Start by talking to any solicitor here in Donal T. Ryan Solicitors LLP. We will able to advice you on what you need to do and the complete the necessary documentation.

You can contact us at 062 61288 or 052 7441244 or at law@dtryan.ie

Sole Trader -v- Company – which is best?

One of the many aspects a business owner needs to consider is how to legally structure the operation. For the small business the choice is usually between being a sole trader and operating through a limited Company. Broadly speaking three aspects should be considered – Legal, Accounting and Taxation.

Legal

From a lawyer’s perspective the most attractive element of the corporate structure is limited liability. The Company is a separate legal entity from its owners. The company has its own debts. The owners (shareholders) are not responsible for these debts. The business owner can therefore choose how much money to commit to the business. He will not be responsible for trading losses or amounts due to creditors if the business fails.

Care needs to be taken in the small business in that shareholders will usually also be directors. Directors need to make sure that the company does not trade while insolvent as otherwise they can become personally responsible for debts that should properly be those of the company. Insolvent means that the Company can not pay its bills as they become due.

Shareholders have no liability for damages arising from litigation against the Company. This is an important consideration. It is prudent to insure against risks in so far as possible regardless of the business structure employed.

Unfortunately when Banks lend to a Company the Bank will probably insist on getting a personal guarantee from the directors. In many cases therefore, while Bank debts may be due by a company, the directors will also have a personal responsibility to pay them.

Accounting

Accountancy advice should always be sought when incorporating. There are additional obligations in relation to filing accounts and possibly preparing audited accounts which do not arise in relation to the sole trader but will be an aspect of running a business through a limited company. Also proper books of account have to be maintained as a matter of law.

Taxation

Expert taxation expert advice should be sought for each particular case. However, the current corporation tax rate is lower than personal income tax rate. It is important to bear in mind however that this applies to money earned by the company and retained by the company. If the shareholders pay themselves fees salaries or dividends, then these are subject to full income tax. The corporate structure can be very advantageous in a situation where a company is making more profit than the owners need. Surplus profits can be accumulated in the Company at far lower tax rates than is the case for the sole trader. This money is then available for further investment by the Company in the business.