A Guide to Enduring Powers of Attorney (EPA)

An Enduring Power of Attorney (EPA) is a vital legal instrument that enables an individual, referred to as the “Donor,” to appoint another person, known as the “Attorney,” to make decisions on their behalf should they lose the capacity to do so for themselves. These decisions can pertain to personal welfare as well as property and financial matters. This guide provides an overview of the current system for the creation of a valid EPA in Ireland, particularly in light of the legislative changes brought in after April 2023.

Background

The Assisted Decision Making (Capacity) Act 2015, which was amended in 2023, sets the legal groundwork for the creation and operation of EPAs in Ireland. The act reflects commendable intentions to protect individuals when they are most vulnerable. However, recent amendments to the process of creating an EPA have introduced complexities that some critics find overly cumbersome and user-unfriendly.

The New EPA Creation Process

The process for creating an EPA has been significantly revised to enhance oversight and ensure the donor’s interests are thoroughly safeguarded. Below are the detailed steps involved:

  1. Decision Support Service (DSS) Involvement: The DSS now oversees EPAs. Donors need to register and create an account on the DSS website.
  2. MyGovID Requirement: To create a DSS account, a MyGovID is necessary. This ID integrates access to a broad range of government services. It is obtained through the local Department of Social Protection. Further details can be found here.
  3. Attorney Registration: Attorneys must also register and create with the DSS and obtain a MyGovID.
  4. Identity Verification by DSS: A comprehensive identity verification involving submission of photographic ID and proof of address is required, which can take several months to process.
  5. EPA Application: Following account creation, the donor must download and complete a specific EPA template provided by the DSS, this document goes through a number of questions required to create an EPA.
  6. Execution and Documentation: Required documents include the EPA template, a Donor Declaration Form, an Attorney Declaration Form, a Statement of Capacity by a Healthcare Professional, a Legal Practitioner Statement, and a Notice Form to be served to relevant parties (e.g., spouse, adult children).
  7. Witness by Commissioner for Oaths: The execution of the declarations by the Donor and the Attorney must be done in each other’s presence and witnessed by a Commissioner for Oaths.
  8. Notification of Relatives: Relevant family members (partners & adult children) must be notified of the EPA creation, and have the right to object to its creation.
  9. Submission and Review: All completed forms and a registration fee of €30 must be submitted through the DSS portal for official review and approval.
  10.  EPA Registration: Once approved, the EPA is registered and becomes searchable in the DSS register.
  11. Amendments and Revocation: Amendments to the EPA can be made under certain conditions, subject to fees. The revocation process mirrors the creation process.

Practical Advice and Alternatives

Given the complexity and duration (typically four to six months) of the new EPA creation process, it is advisable to consider alternative preparations:

  • Joint Ownership: Hold as many assets as possible in joint names with a spouse or partner.
  • Advanced Healthcare Directive: This can Address Healthcare Directive decisions should you lose capacity.
  • Affidavit setting out Will and Preferences: Creating an affidavit detailing your preferences for managing your affairs in the event you are unable to do so, i.e. lose capacity, which could be exhibited with any future application for a decision support arrangement .

Conclusion

Creating an EPA under the new system requires substantial effort and understanding of the detailed legal requirements. Prospective Donors should consult with legal professionals to navigate this process effectively. For more information or to begin the EPA creation process, individuals are encouraged to contact their legal advisors. For assistance, contact us today