The New Enduring Power of Attorney Regime: Roadblocks, not Refinement
By Des Lynch, Partner and Head of Private Client Department & Maurice Lane, Legal Executive
Introduction
An enduring power of attorney has long been a very useful mechanism in allowing an individual to ensure that their future needs are met, in a manner they approve, in the event of a loss of mental capacity.
With the long-awaited commencement of the Assisted Decision-Making (Capacity) Act 2015 (as amended) on 26 April 2023, there have been a number of significant changes to the EPA regime, particularly around the creation procedure and the role of the newly established Decision Support Service.
The Function of an Enduring Power of Attorney
An enduring power of attorney (‘EPA’) is a legally recognised arrangement, created by an individual (known as ‘the donor’) which allows them to appoint/nominate another person(s) as their attorney(s), who will make decisions on their behalf in the event of a loss of mental capacity.
Prior to the enactment of Part II of the Powers of Attorney Act 1996, a person could only hope that their family or friends would look after him or her and his or her affairs, with no legal arrangement being available.
Since the introduction of that legislation, an EPA has been viewed as an excellent way to preserve the autonomy of the individual, as they can choose an alternative decision maker, and determine the extent of their decision-making powers, while they have capacity.
When a person does lose mental capacity, the existence of an EPA has also been valuable in avoiding the need for the courts involvement in the private affairs of the individual, as is the case when a person is made a Ward of Court.
Key Features
All EPA’s created on or after 26 April 2023 will be governed by the new legislation. EPA’s created before that date will continue to be governed by the Powers of Attorney Act 1996.
The Decision Support Service
Under the Act, the Decision Support Service (the ‘DSS’) has been established within the Mental Health Commission to oversee the operation of the new legislation.
An EPA governed by the new legislation will only take effect where:
• it is registered with the DSS
• the donor becomes incapacitated and unable to manage their affairs, and
• the DSS has been notified of the incapacity and it accepts that fact.
The DSS will verify the identity of the potential donor, process the application paperwork and maintain an EPA register. This register is accessible to legal practitioners, medical practitioners and financial institutions.
The DSS also has a monitoring role once the EPA takes effect.
New Creation Procedure
Those who wish to create an EPA can now initiate the process in two different ways:
The first option is to create a verified account on the online portal myDSS, either with a Public Services Card and MyGovID, or the submission of proof of identity documents.
With this option, the donor engages with the DSS directly, completes the initial questionnaire themselves, and arranges for the execution of the EPA documentation, with the exception of the Legal Practitioner Statement and Statement of Capacity Forms. All the completed documentation is then lodged on myDSS, alongside the €30 application fee. The DSS will then inform the donor if the application is approved and the EPA put in place.
Alternatively, the donor can instruct a solicitor to engage with the DSS from the outset on their behalf, with no requirement to create a myDSS account. To facilitate this, the donor signs a letter of instruction, authorising their solicitor to act on their behalf. The solicitor then sends this letter, together with the identity verification documents to the DSS, and follows the procedure outlined above.
The Positives
Specialist Legislation
The new legislative regime was introduced with the goal of creating a modern legal framework to support decision-making by adults. Advanced decision making mechanisms, such as an EPA, and other decision support arrangements are now contained in one specialist decision support legislation, which, to an extent, enhances accessibility.
Clarity on Revocation
Under the 2023 Act, the procedure for revocation of an EPA is now clearly set out: If the EPA is not already in effect, and the Donor has a myDDS account, they can request the necessary form from the DSS, meet with a solicitor, sign the document, and lodge same. This must be lodged with a further Legal Practitioner Statement, confirming the donor understands the effect of revocation.
The old legislation was silent on this issue, only stating that revocation was possible prior to an EPA coming into effect.
The Drawbacks
A Cumbersome Procedure
If an individual elects to use myDDS, the new online process may ultimately prove alienating to some elderly clients who have difficulty with technology or who would prefer a hard-copy approach.
The alternative approach, of a donor instructing their solicitor to engage with the DSS on their behalf, has also proved arduous and lengthy. There is currently an approximate 2-month waiting time to receive DSS approval to initiate the process and to receive the initial questionnaire. After the questionnaire is submitted, there is another approximate 2-month waiting period before the EPA documentation is itself received.
If it was deemed necessary to involve a new government body in what are private law arrangements, it may have been more heplful to create a version of myDSS which legal practitioners could use themselves, in order to streamline the process.
Logistical Challenges
A major new challenge is that the donor and their attorney must sign the EPA documentation in the presence of each other, and two independent witnesses. This presents a serious obstacle for donors who would like their adult children to be their attorneys, but at present are living abroad. A donor’s choices being limited in this way, by reason of sheer practicality, greatly undermines the autonomy an EPA is designed to preserve.
The Legal Capacity Statement
A further concern is that if a donor elects to engage with the DSS directly, a solicitor’s sole involvement is to sign the Legal Capacity Statement, confirming the donor understands the nature and effect of the creation of an EPA. A practitioner is expected to certify this after no involvement in the process themselves.
Monitoring by the DSS
Once an EPA is in effect, the attorney will be required to submit a written report to the DSS every year, to include details of any costs, expenses or money paid to the attorney in relation to their duties under the instrument.
Further, if the attorney has the authority to make decisions about the donor’s property and financial affairs, they must submit financial reports, which must include records of the donor’s income and expenses, and a complete list of their assets and liabilities.
While this requirement was clearly brought in to enhance transparency, it may again prove a deterrent for donors who do not wish to overburden their attorney once the EPA is in effect.
Final Remarks
The new legislation, in many respects, changes very little to the core features of the EPA regime: A person can still choose to avail of an EPA. They can choose who they wish to ask as their attorney, and have complete discretion as to the extent of the attorney’s powers. The in-built safeguards remain unchanged – the need for medical statements, a solicitor’s statement, the two notice parties and 5 week objection period.
However, the procedural changes around the creation of an EPA, together with the monitoring role of the DSS once an EPA has been brought into effect, would seem to have created a number of unnecessary obstacles, which at best limit donors in their options, and at worst may deter them altogether.
Des Lynch: dl@ofx.ie Maurice Lane: mdl@ofx.ie
