As explained in my previous article, the Assisted Decision-Making Capacity Act 2015 was enacted on the 26th April 2023. While this was of course a very welcome development in the realm of assisted decision support for vulnerable people, the implementation of the Act seems to have raised a vast number of queries for lawyers in the implementation of the new Enduring Power of Attorney (EPA) process.

An EPA is a document that can be set up by a person to allow another specifically appointed person to make decisions on their behalf if they were to lose capacity. An EPA a great way of ensuring you plan for the possibility of losing capacity to make decisions in respect of your personal care and your property and other affairs. The EPA is therefore clearly a very complex document and not something to be thought of lightly.

New Online Service - friend or foe?

The Decision Support Service (DSS) through the 2015 Act have changed the way EPA’s are made. The creation of an EPA is now a purely online service. While this is obviously beneficial, it is a major hurdle for some people. EPA’s are generally created for an older generation, many of whom may not have easy access to a computer or have an email address.

In addition to lack of internet access, in order to create an account with the DSS, it is necessary to have a Public Services Card and a MyGovID. The obtaining of this card is something that needs to be done prior to beginning the process of creating an EPA which may lead to delays. People often put off the creation of documents such as a will and an EPA. This could mean that a person's capacity is already jeopardized and a further delay in the creation of the Public Services Card may mean that the person loses capacity before the EPA is created.

A further hurdle is that all persons who are being nominated as attorney’s must create an account with the DSS and so again also require the Public Services Card and MyGovID. This could result in further delays.

There is also the question of people who lived all their lives in another country and raised their children abroad and are now resident in Ireland and have made Ireland their home. They may want to have their EPA registered in Ireland and have their children act as attorneys. Their children may not live in Ireland and so do not have a PPS number which will again have to be applied for along with the Public Services Card and MyGovID. Clearly this is not the most time efficient manner of even beginning to make an EPA.

Logistics of signature

In order to create a valid EPA, it must be in writing, signed by you and your attorneys and witnessed by two people. The main issue that arises with this, and a new requirement under the 2015 Act, is that each person must be present in the same room at the same time in order to sign the document. This is all well and good if everyone resides in Ireland but if you have children living abroad, they will need to be present with you when signing your EPA. The logistics of this may not be possible which may lead to you having to appoint an attorney purely for their presence in the country which is extremely limiting. In other words, this impractical rule may prevent you appointing the attorney’s that you actually want to appoint!

Legal Capacity Statement

A valid EPA also requires a legal capacity statement. This is a statement that is signed by a lawyer who confirms that you understand the consequences of making an EPA. While this is practical in theory, it is quite difficult for any lawyer to sign off on your ability to understand the consequences of making an EPA if they have not been involved in any stage of the process. A lawyer will also need to ensure and certify that you are not under any duress or undue influence to create the EPA. However, this again will be difficult to assess if they have not had any involvement in any stage of the creation. This difficulty may actually result in preventing lawyers who take their responsibilities seriously, from providing the necessary certification.

Notification Process

Once your EPA has been created and registered with the DSS, you must then notify certain people of its existence. You must notify your spouse/civil partner/cohabitant and all adult children. If you do not have a spouse/civil partner/cohabitant and all adult children, then you must notify two people of the existence of the EPA. This could be a trusted friend, other family member or professional such as a doctor or lawyer. This again has raised some very serious issues. What if you have separated from your spouse/civil partner/cohabitant and do not want them to know about the EPA? What if you are estranged from your adult children? This has not been clarified by the DSS but as it stands notification to these people are a mandatory requirement of the creation of an EPA.

Clearly the new process has raised a lot of queries and potential difficulties. We are communicating with the Law Society and the DSS in an effort to clarify these serious difficulties and endeavouring to find solutions. All of this will take some time. As with all new legal creations, there is a teething process that we will need to go through and will of course keep you updated as we navigate these new waters.

As always, if you have any queries or wish to begin the process, please contact us on info@wolfe.ie or feel free to phone the office on 028 21177.

By Aislinn Collins Solicitor

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

May 2023 Wolfe & Co. LLP Solicitors

Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie

Tel: 028-21177, e-mail: info@wolfe.ie