We Told You so!
So finally the above Act has been commenced on 26 April 2023 after a long and complicated birth given that it originally was meant to be issued in 2015.
The basic idea is that the Act imposes an obligation on the enduring power of attorney donors to register their power document at the time it was created. This contrasts with the previous process by which it was only registered when the person donating the power registered when they had lost capacity to manage their own life decisions .
We now have to work with the system and to see how it works out in practice. From the start this Act is designed to be a lawyer free area and expects the general public to be
- web savvy
- capable of completing a detailed application form which can only be downloaded from the new office set up known as the Decision Support Service (DSS) .
I will contrast the older system with the new system.
Under the old system the Donor signed the authority in the solicitors office and that solicitor in turn certified the person was capable of signing this . Also 2 independent witnesses were written to and advised that this power was proposed to be given to a named person.
Contrast this with the necessity for the donor themselves to now register directly and create an account with the above named DSS office.
This is not a simple process as the application must use the online form for EPA’s only. They also must prove their identity through the use of a public service card and then create an identity on a further website MyGovID.
You’ll see what I mean about being web savvy and given that the EPA’s are mainly a matter for persons in their later years not everybody has that capability in that age group.
There is a total exclusion of the solicitor from oversight of the EPA process or from any advisory role in connection with the preparation of the EPA. We don’t have access to the forms they are using !
The only involvement for the Solicitor comes after the EPA has been created to certify whether the donor understands the contents of the EPA.
Again this obligation Solicitor is to certify that they believe the donor is executing the EPA with clear and sound mind and without pressure from anybody else.
Does that mean that an intended person is simply going to arrive into a solicitors office and the solicitor might never have come across this person before and they are asked to certify that the person who has completed all the application forms is in their opinion of sound mind to make such an application?
A sensible solicitor would refuse to confirm such a declaration if they were not involved with the person on an ongoing basis. This provision is unworkable.
In summary this is a new procedure and will take some time to settle in as to how it operates in practice but like the Injury Board system for compensation for injuries when it was established was to be a lawyer free zone members of the public simply did not or could not operate the system and eventually over 95% of claims with that body are by solicitors.
The passage of this legislation through the Oireachtas was difficult with constant changes and bolt on additions due to lobbying by various parties. At the end in our opinion it is far too complicated for members of the public to operate the system.
EPA’s are not that commonplace unless a person is very organised and wishes to have their affairs in order but that is a minority of the population. These new rules complicate that intention and it is unlikely that laypeople will go to the trouble of completing the relevant forms independently of legal advice as the provisions of the Act are now structured.
As this procedure is more complicated and time-consuming to operate there will be additional legal costs for anybody who wishes to have their legal adviser involved from the outset .
This in turn will reduce the number of people who will partake of the provisions of the Act.
It remains to be seen how it will operate.
As Always If You Need Assistance please get in touch.