DSS Director clarifies position with new EPAs

The Assisted Decision-Making (Capacity) Act 2015 as amended, which finally commenced on 26 April 2023, is important, complex, reforming legislation, writes Áine Flynn (Director of the Decision Support Service).

It introduces a new framework of supports for decision-making, underpinned by rights-based guiding principles. It also provides for advance planning by way of advance healthcare directives, and a revised enduring power of attorney (EPA) to ensure that an individual’s will and preferences are always understood and respected.

There are matters raised in a Gazette.ie article, titled: ‘New system for EPAs ‘not working’,’ published on 4 January 2024, that require some clarification. The article suggests that only 27 EPAs had been made in the first eight months after commencement of the act, leading to the view that “the current system is not working, for whatever reason”.

The article suggests that this number reflects unwillingness on the part of potential donors to engage with the new statutory process, which requires donors to register their EPA with the Decision Support Service (DSS) when the instrument is created.

Correct position

Firstly, on the number of EPAs created, the correct position is that as, of 8 December 2023, a total of 311 EPAs had been submitted and were pending registration. Under the 2015 act, a five-week notice period must elapse prior to review and registration of the EPA by the DSS. As of 8 February, this number had increased to 529.  

On 8 December 2023, a total of 1,408 applications were ‘active’ on the system, meaning that the donor had completed the substantive EPA instrument and proceeded to take up supporting documentation. On 8 February last, 2,036 applications had reached at least this point on the system.

Statutory requirement

In relation to the requirement that the donor and attorney are both present to sign and witness the EPA instrument, practitioners will be aware that this is a statutory requirement under section 60(4) of the 2015 act – not one set by the DSS. The same requirements around signing and witnessing apply to other decision-support arrangements under the 2015 act.

In relation to the requirement to notify all of the donor’s adult children of the making of an EPA, it should be noted that this is not absolute. Section 69(1B) states that the Director of the DSS may treat the notice requirements as having been met if satisfied that all reasonable efforts have been made.

EPA variation

The Gazette article suggests that provisions relating to the variation of an EPA are off-putting for donors.

Section 73(4B) states that an EPA may be varied six months after registration and every 12 months, or earlier, and more frequently, by agreement with the director. It would be interesting to know on what basis it is asserted that this provision deters a potential donor from making an EPA at all.

In relation to the legal-practitioner statement required under section 60(1)(b), practitioners will note that this statement is very similar to the statement under section 5(2)(d) of the Powers of Attorney Act 1996.

Implications of an EPA

Under section 60(1)(b), the legal practitioner (defined as either a practising solicitor or barrister) states that he or she “is satisfied” that the donor understands the implications of creating the power, “is satisfied” that the donor is aware of the provisions for variation and revocation, and “has no reason to believe” that the instrument is being executed as a result of fraud, coercion or undue pressure.

The Gazette article says that there is a requirement to “make sure that there has been no fraud or undue pressure”, which might suggest a different standard.

In May 2023, the Law Society published guidance in relation to these statements – and solicitors have been providing them, including in cases where the solicitor has not been instructed in the creation of the EPA instrument itself. The Law Society issued an updated practice note on EPAs on 15 February 2024.

New safeguards

In this context, it may also be worth noting that the section 60(1)(b) statement is one feature of a process incorporating several new safeguards. Under section 69, the DSS is responsible for reviewing the EPA instrument before registration. The DSS must make reasonable enquiries to ensure compliance with the 2015 act and the suitability of the attorney, and reviews the statements of understanding and undertaking by the donor and attorney.

The DSS must also consider any objections by notice parties and other persons, which may include objections based on alleged fraud, coercion, or undue influence. Similar safeguards apply at the second stage of notification of an EPA.

After notification, the attorney must now keep account and records and submit periodic reports to the DSS. Whereas under the 1996 act, a complaint could only be made to the court, any person may now complain to the DSS about an attorney on specified grounds.

The DSS has stated that it is the prerogative of any donor to instruct a solicitor in the creation of an EPA instrument, and that this is particularly advisable in complex advance-planning matters. Estimated figures based on DSS records show that over 260 firms of solicitors have been instructed in the creation of EPAs since 26 April 2023.

Important role

We acknowledge the important role that the legal profession can play to promote advance planning and improve on the low level of take-up of EPAs under the 1996 act. The DSS is keen to address the misapprehension that an EPA is something to be deferred until late in life or, most concerningly, until capacity is becoming a live issue. This was a key message of a public event on advance planning hosted by the DSS on 30 November 2023 and was positively received.

The DSS has engaged frankly and proactively with the Law Society before and after commencement of the 2015 act, and issued an offer to contribute to any training events. The DSS has also engaged with practitioners in individual cases to help them to navigate the new processes, and will continue to do so.

New ‘digital first’ approach

It is acknowledged that the ‘digital first’ – not ‘digital only’ – approach is new and potentially challenging. This approach to accommodate the new statutory EPA process has been adopted advisedly and in line with Government policy. Manual, non-digital systems are inefficient, prone to error and data frailty, and demonstrably unsustainable. By way of assistance, information, guidance materials, specimen completed forms, explainer videos and frequently-asked questions, are available on the DSS website.

The DSS has now written to all of the regional solicitors’ bar associations to invite them to organise online events at which we can walk practitioners though the EPA process and provide demonstrations of the system. Accurate, practical information is required to help ensure that obstacles are overcome, and opportunities are embraced.

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This article is intended as an overview of certain parts of the Assisted Decision-Making (Capacity) Act 2015 and related matters, and should not be relied on as legal advice or opinion.