Mayo lawyer slams enduring power of attorney as 'bureaucratic quagmire'
LEGISLATION that established a new legal framework for creating supportive decision-making arrangements by adults who may have difficulty making decisions without help, to include an Enduring Power of Attorney, has become “a bureaucratic quagmire”, according to a Mayo based solicitor.
The Assisted Decision-Making Capacity Act 2015 (as amended) came into effect on April 26, 2023, and permits people to make legal agreements on how they can be supported to make decisions about their personal welfare, property and affairs.
The Act changed the law that governs the creation of an Enduring Power of Attorney.
An Enduring Power of Attorney is a legal device where a person gives another person (known as the Attorney) the power to make decisions on their behalf in relation to their welfare, property and affairs in the event they are no longer able to do so themselves due to illness or mental impairment, such as dementia.
An Enduring Power of Attorney only takes effect during a subsequent loss of mental capacity.
A new state service, the Decision Support Service (DSS), was also established under the Act. The DSS provide services for all adults who may need support with their decision-making capacity.
One of their roles is to regulate and register decision support arrangements such as EPAs.
A person who now wishes to create an EPA is obliged to do so in accordance with the DSS process.
In its guidance notes, the DSS state that it is the prerogative of any person to instruct a solicitor in relation to the creation of and registration of an EPA, however they actively encourage those desirous of creating decision making arrangements to use their online portal, siting the establishment of a MyDSS account as the quickest way to put in place an EPA.
William O’Connor, of law firm P. O’Connor & Son, says many of his colleagues have decided to opt out of the Enduring Power of Attorney (EPA) process altogether as a result of the changes introduced.
In a statement, William O’Connor says the new system is badly designed and unusable for a significant number of people.
“The fact that many solicitors are no longer providing EPA services as a result of the changes introduced is bad news for clients as well as the professionals who play an important role in providing vulnerable clients with legal advice,” said Mr. O'Connor.
He continued: “There are obvious reasons why a client might choose to engage the services of a solicitor when creating an EPA.
“Very often it is the most vulnerable clients who engage our services for the purposes of creating an EPA.”
Mr. O’Connor says the ‘digital first’ process adopted by the DSS is largely to blame for the present crux.
He adds: “The obstacles the digital first approach presents for a person who is ‘digitally challenged' yet desirous of creating an EPA needs to be addressed without further delay.
“If clients continue to want to instruct their solicitor to draft a confidential legal instrument for them the DSS need to realise same and be willing to change their attitude towards the ‘digital first’ approach.
“The DSS need to facilitate the legal profession by creating a solicitors’ drafting portal.
“If a client wants their solicitor to advise them on the law and draft their legal instrument they should be entitled to do so, and there should be no obstacles delaying this process in place.
“The delays now involved when creating an EPA where the client opts out of a digital first approach is preventing many clients from having their legal instrument drafted in the new form and executed within a reasonable time from initial instruction.”
Mr. O’Connor’s statement concluded: “I appreciate the issues raised by me are well known to the Law Society, advocacy groups and to the DSS, amongst the other interested parties.
“The solution to the problem is relatively straightforward.”