The Assisted Decision-Making (Capacity) Act 2015 is due to commence on 26 April. The long-awaited commencement will overhaul Ireland’s wardship regime. There are also other significant changes brought about by the legislation including to enduring powers of attorney (EPAs).
Enduring powers of attorney
EPAs are currently governed by the Powers of Attorney Act 1996, which take effect on the incapacity of the donor. EPAs are a legal arrangement to ensure that the donor’s affairs are attended to in the event that they lack the capacity to do so at a later stage. The donor must have capacity at the time of the creation of the EPA, which is determined by healthcare professionals. Healthcare professionals are already using the functional capacity test in making such determinations. This involves determining whether a donor has capacity to make a specific decision at a specific point in time. Section 3 of the 2015 Act places this requirement on a statutory footing.
EPAs made under the 1996 Act will remain valid after the commencement of the new Act.
Newly created EPAs
Newly created EPAs must be done under the 2015 Act once it commences. The process is broadly similar. There are key differences which mean that solicitors who accept instructions in the area should update their internal procedures. Attorneys, under the new regime, must state that they will act in accordance with the guiding principles under the 2015 Act. These are set out in section 8 of the Act. These include the presumption that the donor has capacity, until it is determined otherwise, and any intervention on behalf of a person should be done in a manner which minimises restrictions to their rights.
If the donor loses capacity after commencement of the 2015 Act, the attorney must apply to register the EPA with the Decision Support Service. Section 69 of the 2015 Act provides that the Director of the Decision-Support Service should then review the application to register the EPA and make reasonable enquiries, including as to whether the EPA has validity complied with all of the procedural steps and whether the attorney is a suitable person. Those who had previously committed offences against the donor would not, for example, be considered suitable.
Part 7 of the 2015 Act provides full details of the steps to be complied with to ensure that EPAs are done in accordance with the Act.
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