Update on the Enduring Powers of Attorney

December 7, 2023

On the 10th May 2023, I wrote an article discussing the changes made to Enduring Powers of Attorney under the Assisted Decision-Making (Capacity) Act 2015 (see here - https://www.wolfe.ie/assisted-decision-making-capacity-act-2015-part-2/ ). Today, I will give you an update on how things have progressed since then, some six months later. Spoiler alert: it has not been great.

To refresh your memory, an EPA is a document that allows another specifically appointed person to make decisions on your behalf if you were to lose capacity. An EPA is a great way of planning for the possibility of losing capacity to make decisions in respect of your personal care and your property and other affairs. An EPA is clearly a very complex document and not something which should be embarked upon lightly.

On the 26th April 2023, the Assisted Decision-Making (Capacity) Act 2015 was enacted. The Act established the Decision Support Service (DSS) within the Mental Health Commission to oversee the operation of the Act. The Act was introduced to establish a new legal framework to allow people to make legal agreements on how they can be supported to make decisions about their personal welfare, property and affairs. This was a long awaited Act and a very welcome development for many people in Ireland who may have difficulty making decisions, for instance, people with intellectual disabilities, acquired brain injuries, mental health difficulties or dementia.

However, there are some very grave issues in respect of EPAs. By way of brief explanation, the document creating the EPA must be in a particular format and must include 1) a statement from you that you understand the effect of creating the EPA, 2) a statement by your doctor verifying that in their opinion you had the capacity at the time that the document was executed to understand the effect of creating the EPA, 3) a statement from a solicitor that they are satisfied that you understood the effect of creating the EPA and that you were not acting under undue influence and finally 4) a statement by your chosen attorneys that they understand their obligations and agree to be an attorney.

The first hurdle that we, as solicitors, have faced is the “digital first” process. There was approximately an eight year lead up to the commencement of this Act and at no stage prior to the 26th April 2023 were solicitors or in fact the general public informed of the move to an online portal. This has led to some very serious operational difficulties for solicitors and the general public alike.

While I appreciate that we are living in the digital age, the majority of calls we receive from clients seeking to create an EPA are from people aged in their late 60s, 70s and early 80s. These people were raised before the creation of computers and therefore may not be quite as tech savvy as the younger generations and would prefer to engage in a hardcopy solicitor assisted application process.

The Law Society were immediately aware of the operational difficulties that the online portal created for solicitors and their elderly and more vulnerable clients. The Law Society therefore worked with the DSS to provide solicitors with an alternative hardcopy format to assist the clients who do not have access to or do not feel comfortable with computers. While this has of course been very helpful, the alternative format offered was a paper process which has not been without its faults.

As it now stands, in order to instruct a solicitor to create your EPA, you and all of your attorneys need to sign a letter of authority and provide various different specified forms of identity verification. This is sent to the DSS for approval and there is approximately a two month wait to receive the initial hardcopy application to register the EPA. This initial application is completed by the solicitor and there follows another approximately two months wait. It is at this stage, after a wait of approximately four months, that we get the formal EPA documents for signing by you, your attorneys, your solicitor and your doctor. Following completion of the EPA documents, the solicitor sends certain documentation to your notice parties and there is a further mandatory five week notice period. Once this five week notice period has passed, your EPA should be formally registered. Therefore, the paper process offered to solicitors takes approximately six months for the EPA to be formally registered with the DSS.  This is an unacceptable delay in circumstances where some clients can come to us with their capacity already in question.

What has been suggested to the DSS and which has not been forthcoming to date, is the introduction of a solicitors portal to enable solicitors to utilise the online portal on our clients behalf. Online portals for solicitors are already in existence in other areas such as personal injury litigation and in probate so it would appear that the technology is available. A portal for solicitors would certainly streamline the creation of the EPA and surely avoid the unnecessary paperwork that is currently being generated.

The second hurdle is the solicitors statement that is required to be provided for an EPA. It appears that the goal of the DSS when creating this online portal was for a person to create the EPA online themselves and then arrive at a solicitors office with the completed EPA and have the solicitor sign the Legal Capacity Statement.  As the solicitor will not have been involved in any stage of the creation of the EPA and in circumstances where the EPA is created online, it is hugely difficult to establish, at face value, whether the person has had assistance or has been under any pressure in the process. The solicitor is thereafter required to interview the donor and ascertain whether the donor understands the implications of creating the EPA, ensure that the donor is aware that they can vary or revoke the EPA and then certify that they have no reason to believe that the donor is executing the instrument as a result of fraud, coercion or undue influence. This is an onerous certification to make when one has not been involved in any stage of the creation of the EPA. The likelihood of this process is that, at the very least, the donor has had the assistance of their attorneys in the creation of the EPA and so this certification process may prove an impossibility for a conscientious solicitor.

In addition, and most worryingly for all solicitors, is that solicitors who do certify that a person was not under any coercion or undue influence may in fact be investigated by the Director of the DSS. They may be summonsed to attend as a witness before the Director, be examined on oath and asked to produce to the Director any document in their power or control that they may have relied on. In the event that the person fails to comply with a requirement, hinders or obstructs the investigation they shall be guilty of an offence. The very fact that the solicitor is not involved in the process makes it, in my opinion, next to impossible for a solicitor to take on the risk and responsibility of signing such a certificate.

The third hurdle that I have come across in practice is in relation to the notice parties. A notice party is someone who is told that the EPA has been created. A notice party can object to the creation of the EPA if they feel the EPA should not be created. A notice party would have to have a particular reason for the objection. It was always the case that one notice party must be a close relative such as a spouse. The other notice party could be a trusted friend or advisor. The Act now however provides that notice must be given to your spouse/civil partner/cohabitant and all children over 18. There is no reference in the Act to a situation where someone is separated from their spouse or if they, for whatever reason, do not wish to inform all of their adult children. This can sometimes be a difficult situation for clients.

The fourth and in fact most serious hurdle of the EPA process is that of Part 7 Section 60 (4)(a) of the Act. This provides that the donor and their attorneys must sign the EPA documentation in the presence of each other and two independent witnesses. This is a new requirement under the Act. This means that you and your attorneys are required to be in the same room at the same time to sign your EPA. This is a logistical nightmare. In many cases, the person creating the EPA will likely wish to appoint their nearest and dearest and natural choices, i.e., their children, as their attorneys. In rural Ireland, many of our family members will have moved abroad for work or lifestyle. To expect them to go to the difficulty and expense of returning to Ireland, all at the same time, in order to sign the form is utterly impractical and unreasonably onerous. This requirement will surely preclude the person, in many cases, from appointing the people that they wish to appoint in circumstances where their preferred attorneys cannot travel to Ireland to sign a declaration form. More worryingly, it may and has led to many clients not proceeding with the creation of their EPA as they are not able to appoint their desired attorneys.

My colleagues at Wolfe & Co LLP and I have written to the Minister Roderic O’Gorman, to the DSS, to the Law Society and to the local TD’s to see if something can be done to assist solicitors and the general public with these issues and unfortunately we are not receiving a positive response. I intend to continue on with this battle on behalf of our clients.

 

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.

 

December 2023 Wolfe & Co. LLP Solicitors

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

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