The purpose of this video is to give a brief overview of the area of enduring powers of attorney. There was a lot of change in this area of the law last year, April 2023, when the Mental Health Capacity Act 2015 came fully into force, there has been considerable change to the area of law governing the creation of EPA’s.
Historical Perspective on Creating EPAs
Heretofore, it was relatively straightforward to create an EPA and could be done relatively quickly. Often, there would be a client whose capacity might shortly be in jeopardy and you would drop everything, and in conjunction with their GP, you would put the EPA in place. It was a system that worked very well.
Challenges Under the New System
Now, under the new system, this cannot be done. It’s far more difficult to create an EPA and there are more hurdles to overcome should you wish to do so. At the moment, it’s taking somewhere between six and nine months to create an EPA. Given the time now required to create an EPA the costs have tripled, given how cumbersome it is.
Steps to Create an EPA Under the New System – DSS profile
In order to create an EPA under the new system, you will have to do the following:
Create DSS profile
Firstly, the Donor or the creator of the EPA will have to log on to the Decision Support Service (DSS) website and create a profile, as will the nominated Attorney, the person being appointed in the EPA to make decisions on behalf of the Donor, in the event they lose capacity.
Obtain MyGovID
In order to create a profile with the DSS, you will need a Mygov ID. You’ll have to obtain the Mygov ID from your local department of Social Welfare. Currently, this requires a minimum of two separate visits. Once you have successfully obtained your MyGov ID and created your profile with the DSS, you will then have to submit ID verification to them. This will include photo id and proof of address. This process again takes up to six week.
Download Template EPA
Once you’ve successfully done all of that, you will then be able to download and complete a template EPA from the DSS portal. As part of this, there’ll be four different sections setting out what you want to happen under your enduring power of attorney.
Formalities and Forms required
You will have to download the following forms and complete them and return them to the DSS within three months of beginning the process.
Donor Declaration Forms
This is signed by the person creating the EPA and must be signed in front of the Attorney. So you’ll have to arrange for your Attorney to be present, this may present logistical difficulties if your Attorney does not live locally.
Attorney Declaration Form
Next, is the Attorney Declaration Form. Again, this has to be signed in the presence of the Donor.
Solicitor’s Declaration Form
There is a Solicitor’s Declaration Form which will need to be signed by a Solicitor, confirming they are satisfied that, at the date you’re signing the declaration, you’re aware of the implications and consequences of signing the EPA.
Healthcare Professionals Declaration
Finally, there is a Healthcare Professionals Declaration to be signed by your Healthcare Professional, i.e. GP. The legislation requires that you furnish your Healthcare Professional with a copy of the EPA. Why this is necessary, I don’t know and I would think it’s an overreach but it’s required under the legislation.
Notice Parties and Objections
Once all of that has been done, you must then serve copies of the EPA on the various prescribed notice parties, these include your Spouse, Cohabitant or Partner and any adult children.
Any of these notice parties will have five weeks within which they can object to the creation of your EPA. If they wish to object, they’ll have to write to the DSS setting out the grounds on which they’re doing so. Again, this requirement seems excessive and unnecessary.
DSS Approval Process
Once all of the above forms have been completed and the notice parties served or their consent obtained, all the documents will then have to be uploaded (within 3 months) to DSS for their review and approval.
The DSS will charge a fee for the registration of your EPA. They’ll also charge a fee if you wish to amend it. There are some quite, narrow restrictions setting out the time periods within which you can amend your EPA after its creation, something to be aware of.
In the event you also wish to revoke your EPA, a similar process mirroring the above in reverse will have to be completed in order to untie that knot. Given the its quite a quite lengthy and cumbersome, its something worth bearing in mind, on a practical level.
DSS Register
Assuming the DSS do not raise any queries or questions and they approve the EPA, it’ll then be placed on their register, which will be searchable by various parties, including lawyers, banks and other parties as yet unspecified.
Activation of EPA
In the event that you do lose capacity, your Attorney will have to make an application to the DSS to have your EPA activated, as part of this process they will have to exhibit two separate reports from Healthcare Professionals confirming that you have lost your capacity.
Your Attorney will have to keep a record of all decisions made on your behalf and will have to submit regular accounts/reports to the DSS.
Practical Alternatives for Clients
What we are advising our clients to do in the event that they don’t wish to go through with the steps (and costs) involved in setting up an EPA, here are some practical alternative steps they may wish to consider;
- Firstly, ensuring that you and your partner have as many of your assets in joint names as possible.
- Secondly, consider setting up an Advanced Healthcare Directive which deals with any personal healthcare decisions you may wish to make at, a point in the future when you no longer have capacity to do so.
- Thirdly, you might want to consider getting your solicitor to draft, an affidavit setting out your will and preferences at a specific point in time. And this affidavit could then be exhibited at a later point in the event that an application to the court was necessary, say, for example, if a family member was making an application to have a decision making representative appointed.
The changes in the legislation have undoubtedly made the creation of an EPA more difficult. The new system frontloads a lot of the work, with registration being compulsory.
For further information, please contact the office and we’d be more than happy to sit down and talk you through your various options.
