Around twelve months back, my cousin and I consulted with our elderly uncle in his 80s, deliberating on the optimal approach to assist him with his various personal and legal complications. As a collective, we concluded that the most beneficial approach would be to establish an Enduring Power of Attorney (EPA) on his behalf, designating ourselves as the acting attorneys, if and when the situation required.
We initially reached out to his legal advisor to facilitate the EPA, only to be informed that, post 26th April 2023, all such arrangements needed to be channelled through the Decision Support Service website, thereby rendering him unable to assist.
Our subsequent attempt to draft the EPA via the website proved to be complex. It required the person for whom the EPA was intended to have a comprehensive digital identity, inclusive of MyGovIDs, email addresses and other digital footprints.
Undeterred, we managed to surmount most challenges until we reached the point of completing forms that were auto-generated for us. At this stage, we found ourselves in a conundrum, seemingly orchestrated by both the Government and the Law Society.
The form titled ‘EPA Legal Practitioner Statement’ necessitates the signature of an attorney. Our uncle’s lawyer refused to sign it, maintaining that the Law Society issued guidelines stating attorneys must refrain from signing such agreements.
Consequently, we, and more importantly, our uncle, find ourselves in a predicament: unable to finalise the EPA application. His solitary existence, coupled with his lack of offspring, places us in a vulnerable position whereby we might be helpless in aiding him should he lose his capacity to make decisions.
It appears the Law Society perceives the DSS-led system as being unfavourable towards solicitors, consequently encouraging their members to refrain from cooperating. The ramifications of this are numerous seniors may be deprived of receiving assistance from their families, an undue situation that must be rectified.
Sincerely,
D.A.
It’s quite a conundrum, isn’t it? The proposed system, which promised ease of usage, greater respect towards the beneficiaries, and enhanced consumer protection, does not appear to be operating as efficiently as anticipated.
It’s extremely problematic and worrying, primarily for vulnerable individuals who are anxious about their prospective care, especially if they find themselves unable to make their own decisions. They derive a sense of security and autonomy through the instrument of enduring power of attorney (EPA). This legal device grants them the power to determine who can make decisions on their behalf when they are incapacitated, and the scope of such decisions, pertaining to their personal care, finances, living conditions, or property, or all of these combined. Without an EPA, the responsibility of appointing a surrogate decision-maker falls to the court. There is a risk that this appointed individual may not know the incapacitated person, their likes, dislikes, aspirations, anxieties or the preferences they had expressed when they were capable.
The new system, to which you refer, was implemented last year, after quite some time elapsed since the ratification of the relevant legislation. We were informed that this delay was necessary to establish thorough structures to ensure the smooth operation of the process, legal integrity and enhanced respect for the individual when compared to the previous framework.
This updated system comprises not merely provisions for enduring powers of attorney, but also introduces aspects like pre-emptive healthcare directives and functions as a replacement to the former wards of the court structure. That said, a large chunk of the work carried out by the Decision Support Service (DSS) – the entity responsible for delivering these services and supervising the proceedings – pertains to enduring powers of attorney, to the best of my understanding.
Two fundamental concerns you’ve raised in your letter are intriguingly interconnected within this dispute.
Firstly, there’s a matter of the “online only” model of engaging with the system, which can understandably cause difficulties for some older and highly vulnerable individuals. Secondly, there exists a certain bottleneck in the process, where the individual applying needs to obtain a signed confirmation from a solicitor, verifying that the benefactor comprehends the consequences of granting the power and that they have the discretion to modify or annul the power of attorney clauses. This prerogative stays till they are mentally capable of making decisions independently.
The signature serves to verify that the lawyer has no basis to suspect any instances of fraud, coercion or undue influence in the implementation of the Enduring Power of Attorney (EPA). This serves as a crucial safeguard against elder abuse. Despite popular belief, not all families act in harmony and for the mutual benefit of their members; contrary cases are, unfortunately, quite prevalent.
The allocation of significant power to “attorneys”, comprising relatives, friends or professional advisers, through the EPA, mandates caution. These individuals will be entrusted with decision-making on behalf of the EPA grantor.
There seems to have been a discord between the Department of Social Security’s (DSS) perceived necessary actions to preserve system integrity under the 2015 Act, and the legal responsibilities of solicitors in managing client relationships and their duty of care, any breach of which could lead to legal punishments.
Although I do not possess the full details, I believe both parties might have developed a degree of suspicion. I also suspect that both parties might have become somewhat obstinate. The figures I’ve been able to gather up corroborate this.
Accroding to the DSS, over 3,000 EPA applications had reached the stage where the donor, or the individual initiating the EPA and who would be protected under its terms, had finalised the EPA instrument and moved to the next step – securing the required documents under the 2015 Act. It includes a “capacity statement” from a physician and a “legal practitioner’s statement”.
Contrary to a 2021 report by the service predicting 5,556 decision-support arrangements in the first six months of operation, only 167 applications for enduring powers of attorney were approved by the DSS, rendering them eligible for registration, according to a parliamentary question answered by junior minister Anne Rabbitte in April. The DSS has now updated that number to 247 with an additional 990 applications undergoing a review of necessary documentation.
In 2022, 1,581 enduring powers of attorney were documented by the High Court, a significant rise from 1,234 in 2021, indicating a substantial bottleneck in the system. This is all the more glaring when one realises that, in the past system implemented in 2021 and 2022, the powers were only recorded by the court when activation was required, unlike the numbers under the current act representing powers that have been simply finalised and affirmed.
The Minister of State interestingly revealed that one in six to one in seven of all the requests for an EPA was processed manually, meaning they did not use the online portal myDSS.ie.
Universal support for the new legislation is clear, with all stakeholders eager to ensure its success. The potential downfall of the system is a concern to everyone, particularly considering its paramount role in protecting the elderly and vulnerable according to their own wishes as far as possible.
While it’s acknowledged that there has been no feedback from the Law Society, your frustration is clearly felt, seemingly due to what you perceive as deliberate hindrance from their side. Yet, upon reviewing the advisory note (not directive) distributed by the Law Society to its members, I find nothing that prevents a solicitor from completing the necessary forms in this process, as long as both parties are acquainted.
One apparent issue that the Law Society alerted against is the rapid, thoughtless completion of forms for individuals who approach solicitors with no prior established connection. This strikes as a reasonable concern, as it’s hard to imagine how a solicitor could confirm in a single meeting with a possible stranger that the person isn’t under any duress.
Conversely, under the previous system, legal professionals tended to be part of the process from the onset, dealing primarily with existing clients or those they would meet multiple times throughout the procedure.
The sentiment among legal professionals is clear: they feel they are being pushed into untenable positions. They stress that this is not about worrying over their fees or controlling the system. Instead, they are primarily concerned with effectively serving their clients and maintaining their professional credibility. They have issued advisory notes that, drawing on past case law, indicate that if a solicitor is unable to engage deeply with a person wishing to create an Enduring Power of Attorney (EPA), they may not be able to supply the necessary legal statement.
The issued guidelines articulate that it’s reasonable to expect courts to demand high professional standards and a strong duty of care from solicitors, a position hard to debate. Touching on another worry – the forceful push to transition to an entirely online system – the Law Society points out that the narrow ‘digital first’ approach often overlooked the digital proficiency level of some older or vulnerable individuals or those already likely to be at a disadvantage. It further states that the current system set-up has made it difficult for solicitors to handle the process for their clients.
On their end, the Department of Social Services (DSS) acknowledges that every donor has the right to engage a solicitor when creating an EPA, which it strongly recommends for more intricate EPA’s. According to their figures, solicitors have been involved in roughly 25 per cent of received EPA applications.
The DSS reiterates that it was consciously designed and equipped as a predominantly digital service to align with government policies, using expert advice and the experiences of other legal networks as guiding lights. The Minister affirmed in her parliamentary question response that the law mandates the new system’s EPA to be searchable on a register, hence the online process emphasis.
As with all freshly devised legal procedures, tweaks and adjustments will inevitably be needed to ensure the process is feasible and fulfils its commendable goal. The sooner these changes are initiated, the better, since the ongoing stalemate benefits no one. Particularly, it’s a concern for people who worry that time might run out for them to express and validate their wishes.
Should you have any questions, direct them to Dominic Coyle at Q&A, located on 24-28 Tara Street, Dublin 2, or reach him by email at [email protected] with a phone number attached. This section serves as a resource for readers and should not be viewed as a substitute for expert guidance.