Enduring Powers of Attorney –AN UPDATE

The recent introduction of new legislation on Enduring Powers of Attorney has caught the legal profession by surprise and there is considerable concern about the role that solicitors are now expected to play. DSBA President Susan Martin provides an update

Irecently learned that Enduring Powers of Attorney (“EPAs”) are a type of Ulysses contract. Now, in case you are imagining James Joyce wandering around Dublin on 16th June 1904 looking for Roger Greene Solicitors to provide the Legal Practitioner’s Certificate, I mean the other Ulysses, the one from ancient Greek mythology.

The story goes that Ulysses knew that the Sirens (humanoids with magical voices) had this amazing song, but that it rendered anyone who heard it irrational and, in the past, led to many men drowning under its spell. Ulysses made an agreement with his men that, when passing the Sirens on the ship, they would seal their own ears with wax and lash Ulysses to the mast with ropes. The pact that they made meant that if Ulysses became irrational on hearing the Sirens song, that his men would restrain him, using swords if necessary. So, Ulysses hears the song, becomes unsound, but his men keep him and the ship safe until he is back to his senses.

As you know, EPAs allow people to make choices about their future in the event that their capacity is compromised. They have been an important part of our legal landscape over the past 25 years and have meant that many could choose to avoid the old Wards of Court system.

The commencement of the Assisted DecisionMaking and Capacity Act 2015 (as amended) in April 2023 has meant changes in the way that EPAs are created and enrolled. Firstly, there is a requirement to register the EPA with the Decision Support Service at the time of its creation and, separately, the forms are issued by the DSS for each individual user. Finally, the EPAs are created digitally, rather than on paper.

For many practitioners and clients, it was surprising that the forms would not be available via Statutory Instrument in the way that the 1996 legislation provided and, additionally, the digital interface caused some clients difficulty. There is often a distance between theory and the reality of the implementation of legislation and this was one of those times.

As soon as the reality of the new system became apparent, the DSBA identified the issues as follows:

• Necessity for the Donor to register directly with and create account with Decision Support Service (“DSS”);

• Requirement for the Donor to use the online prescribed EPA form only;

• Obligation on Donor to prove their identity through use of Public Services Card and then creation of MyGovID;

• Compelling the use of PSC and MyGovID;

• Workaround for the identity is through the use of paper forms on an exceptional basis – these forms can only be provided to the Donor directly;

• EPA forms only available to the Donor directly and cannot be drafted by their solicitor;

• Exclusion of the solicitor from oversight of the EPA process and removal of the solicitor from any advisory role in connection with the preparation of the EPA (compared to previous system) – our limited involvement comes at the end, after the EPA is created, to certify whether the Donor understands the contents of the EPA as presented by them to the solicitor and enters into it freely;

• Obligation on solicitor to certify that they have no reason to believe that the Donor is executing the instrument as a result of fraud, coercion or undue pressure – without oversight of the entire procedure;

• Section 96 of the Act ‘Investigations by Director’ which provides that any person can be summonsed to attend as witness before the Director of DSS, to be examined on oath and to produce to the Director any document in the power or control of the witness.

Once we wrote to the DSS and notified them of our concerns, they replied immediately and offered to meet us. We found the meeting constructive and cordial and it was clear that both DSS and DSBA had the same goal – to encourage as many people as possible to make EPAs and to assist the most vulnerable in doing so, safely.

My message to our members, in early June 2023 after the meeting noted that:

• If a Donor wishes to instruct a solicitor in assisting them to create an EPA, there is no impediment to this;

• If a solicitor is acting, that will be noted by the DSS on their system;

• The DSS encourages as many Donors and attorneys as possible to use their online portal as they believe it will be more efficient in the future (especially when it comes to enrolment of the EPA);

• If a client wishes to instruct a solicitor to act on their behalf in the creation of an EPA, the DSS will, on receipt of a written authority, accept it and engage with the solicitor directly;

• There is no obligation on the Donor to provide PPSN (see ID verification form);

• The DSS will make available ID forms on the website;

• If a solicitor writes with letter of authority and completed ID forms, pre-populated forms with a unique [for the individual donor] identification code will be sent by DSS to the solicitor;

• Once the solicitor has prepared the EPA, it can be scanned as a PDF and sent to DSS and they in turn will upload it onto their system.

It may be that in the course of preparing and registering EPAs under the new regime further issues will arise, and members can be assured that DSBA will continue to monitor and make representations where appropriate, as well as provide updates.

I want to take this opportunity on behalf of DSBA to thank Ms Áine Flynn, Director, Decision Support Service, and her staff for their quick response, courtesy and positive engagement throughout.