‘Over-engineered’ portal falls short: Law Society

Figures on the Enduring Power of Attorney (EPA) system shared by the Decision Support Service (DSS) are significantly misleading, the Law Society has said.

The DSS has reported that 3,000 decision-support arrangements have so far been set up (30 March).

However, given that almost €40 million has been allocated to the DSS to date, this is at an estimated cost to the Exchequer of €13,000 per arrangement, the Law Society points out. 

The Law Society has repeatedly stated that the narrow and restrictive DSS ‘digital first’ approach does not adequately consider the digital proficiency of some elderly or vulnerable people, or those who are already likely to be disadvantaged.

Disappointing

Law Society Director General Mark Garrett says: “Members of the public and the legal profession have repeatedly shared their frustrations with the Decision Support Service’s overly complex and restrictive digital system.

“It is extremely disappointing and misleading to see the DSS appearing to celebrate what it calls a ‘milestone’ of 3,000 decision support arrangements, which includes what it calls a ‘landmark’ 2,000 registered Enduring Powers of Attorney (EPAs). 

“The facts look rather different from the perspective of the Law Society, which has raised serious concerns about the assisted decision-making system that is failing to deliver for people who urgently need to put in place arrangements such as EPAs.” 

Significantly off target

The solicitors’ representative body also points out that the DSS’s own projection was for 5,556 arrangements to be set up in the first six months of its operation. By that metric, over 20,000 arrangements should have been registered by now.

“We agree with the DSS that this is an essential public service, however it is also clear that at this rate, it will take the DSS almost four years to reach its original six-month target,” the Law Society comments.

The number of activated EPAs has also collapsed, it adds.

According to information provided in Parliamentary Questions, only 31 EPAs were activated under the DSS for the whole of 2024. This compares with 1,245 EPAs activated in 2022 under the previous system.

‘Unnecessary obstacles’

The Law Society believes that the current system creates unnecessary obstacles for those with fluctuating capacity who may only have a small or an irregular window of opportunity to create an EPA.

The nature of the two-step registration process makes the creation of emergency EPAs extremely difficult. In the opinion of many practising solicitors, this is almost impossible, the Law Society says.

As a result, it is unclear how members of the public facing extreme circumstances – such as an urgent medical operation – can quickly put in-place a decision-making arrangement. Applications also are not processed for several months.

Shortcomings

The DSS website states that it is only now processing digital applications made in November 2024, and paper-based applications made in October 2024.

Further shortcomings have been highlighted in recent weeks by High Court President Mr Justice David Barniville, who expressed concern about the “very low” number of voluntary discharge applications that have been made on behalf of wards of courts.

“The DSS has a huge amount of work to do if it is to successfully transfer all wardships to the new system by the statutory deadline of April 2026,” the Law Society states.

The challenges of the poor design of the DSS online system make it difficult to use – this is aggravated by the fact that solicitors have no access to the system. 

Other contributing factors to severe inefficiencies include:

• Lack of clarity in emergency arrangements,
• On-site presence requirements for attorneys,
• Limitations on making changes to EPAs, and
• Restrictions on any professionals accessing online system. 

The Law Society knows from a recent response to a Parliamentary Question that it is taking the DSS six months to process an application to create an EPA.

“The DSS’s approach to processing applications certainly cannot be heralded as a beacon of efficiency,” the Law Society says. 

While it agrees with the DSS that not enough people in Ireland are creating an EPA, the current system makes this unlikely to change at best, and nearly impossible at worst, the Law Society says.

Overly complex

It has welcomed additional resources for the EPA helpdesk, but points out that this confirms that the process needs significant additional support because it is overly complex.

Director General Mark Garrett says: “The Law Society has raised serious concerns about the complexity and difficulty in navigating the current system, which is creating both unnecessary delays and uncertainty for vulnerable individuals.

“There is clear intervention needed to resolve the failing decision-making system and allow people to make their wishes known for their care, property, and finances. 

“Regrettably, the Decision Support Service has decided to take an overtly narrow, complex and restrictive digital approach,” the director general says.

“The system requires the users to have an email address, a mobile phone, a public services card, a computer, an internet connection, and a MyGov ID – only then to have to create a separate new account on MyDSS. This model simply does not take into consideration the digital proficiencies of many elderly or vulnerable people." 

Digital exclusion

“The Law Society is urging a broader and more inclusive approach to be implemented, to ensure that people can easily and efficiently establish EPAs when needed. 

“The nature of the two-step registration process makes the creation of emergency EPAs extremely difficult, and in the opinion of many practising solicitors, it is almost impossible. For the person who wants to put in place an EPA, the process requires their attorney and two witnesses to be present at the same time. This is causing further delays.” 

Unfortunately, digital exclusion is a reality, the Law Society says.

“We were promised a better, more people-focused service, but that simply has not happened. It’s not good enough for people in vulnerable situations to be left with this level of uncertainty.”

‘Over-engineered’

“The current system has been completely over-engineered and creates unnecessary obstacles for those with decreasing capacity and those in need of an emergency EPA. 

“The Law Society and solicitors recognise the importance, and are investing significantly in, technological solutions as an enabling tool within the legal and justice system.

“We are fully supportive of a more open and broader digital approach being adopted to the creation of EPAs that recognises the capabilities of the core users. But the narrow and restrictive system currently in place is dysfunctional and is failing those people,” the Law Society concludes.