The apparent success story of the current Enduring Power of Attorney (EPA) system shared by the Decision Support Service (DSS) yesterday (30 March 2025) is significantly misleading according to the Law Society.

According to the Director General of the Law Society, Mark Garrett, “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 who has raised serious concerns about the assisted decision-making system which is failing to deliver for people who urgently need to put in place arrangements such as EPAs.” 

• The Decision Support Service’s (DSS) own projection was that “A reasonable estimate for the first six months of operations would be 5,556 decision-support arrangements”. (see DSS Demand Forecasting Report, 2021). The reality is that after nearly two years of the new system, and based on their own targets, we could have expected over 20,000 decision support arrangements registered with the DSS at this point. Based on their own targets the so-called ‘milestone’ of 3,000 looks more like a cause for concern rather than celebration.

• These figures clearly demonstrate just how well below expectations the process put in place by the DSS has performed. 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.

• Almost €40 million has been allocated to the DSS to date. Taking the reported milestone of 3,000 decision support arrangements into account, this is an estimated cost to the Exchequer of €13,000 per arrangement.

• Despite the nearly €40 million invested since 2019, the number of activated EPAs has collapsed. According to information provided in Parliamentary Questions, only 31 EPAs were activated* under the DSS for the whole of 2024. This compares to 1,245 EPAs activated in 2022 under the previous system.

• In addition, under the previous system, which had its last full year in 2022, the volume of EPAs activated was steadily increasing over the past decade, doubling from 620 in 2014 to 1,245 in 2022. In stark contrast, the system has completely collapsed under the new DSS despite the good intentions of the new legislation.

• There is no clarity on how to make Emergency arrangements: 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, and in the opinion of many practising solicitors, it is almost impossible. As a result, it is unclear how members of the public facing extreme circumstances, such as an urgent operation, can urgently put in-place a decision-making arrangement. 

• Applications are not processed for months – the DSS currently states on its website that they are only now processing digital applications made in November 2024 and paper-based applications made in October 2024. https://decisionsupportservice.ie/services/enduring-power-attorney-epa/application-processing-times 

• A further example of shortcomings in the DSS’s approach to administering the assisted decision-making system has been highlighted in recent weeks by Mr Justice David Barniville, President of the High Court. Mr Justice Barniville expressed concern about the “very low” number of voluntary discharge applications have been made on behalf of “wards of courts”. All existing wards of court are required to transfer from a wardship arrangement to a “decision-making representatives” arrangement under the new regime administered by the DSS. The DSS has a huge amount of work to do if it is to assist in the successful transfer of all wardships to the new system by the statutory deadline of April 2026.

The poor design of the DSS online system is making it unusable for a significant number of people, and the challenges are aggravated by the fact that solicitors have no access to the system. Other contributing factors to the system's severe inefficiencies include, the complete lack of clarity in emergency arrangements, on-site presence requirements for attorneys, limitations on making changes to EPAs, and restrictions on any professionals accessing the online system. 

The DSS has placed great store in the efficiency gains that flow from having adopted a ‘digital first’ policy. Yet, 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. 

Without question, the Law Society agrees with the DSS that not enough people in Ireland are creating an EPA. While the Law Society would like to see this change, the current system makes this unlikely at best and near impossible at worst. 

The Law Society also welcomes the additional resources for the EPA helpdesk; however, this does little more than confirm that the process needs significant additional support because it is overly complex.

Director General of the Law Society, Mark Garrett, said, “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 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 to then 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. 

“The Law Society is urging a broader and more inclusive approach to be implemented, to ensure that people can easily and efficiently establish Enduring Powers of Attorney (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 and the extent, nature and causes of the problem were outlined in a report by the Citizens Information Services in ‘Digital Exclusion and e-Government in Ireland’ where information providers who were surveyed for this research agreed that difficulty in accessing public services online is widespread based on their experience of intervening on behalf of clients. As detailed in Figure 2.1 of the report, 34 per cent of information providers estimated that 51-70 per cent of their clients' experience difficulties in accessing public services online, and a further 29.8 per cent of information providers estimated that the proportion of clients in this category was between 31 and 50 per cent. 

“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. 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.”

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