Many lawyers are complaining that the DSS process for creating EPAs is unworkable and needs immediate change. Here is a brief summary of what is happening.
Background
Since the new legislation came into effect, and the DSS became operational, it became necessary for Donors to register their enduring power of attorney at the time it is created. This is different to the former regime, which only required that an enduring power of attorney be registered when the Donor lost capacity and the Attorneys intended exercising powers pursuant to the enduring power of attorney.
The New Regime
In the past a Donor would ordinarily consult with a solicitor from the outset in relation to an enduring power of attorney. The solicitor would provide detailed advice about the nature and effect of an enduring power of attorney, would ensure that the Donor understood the implications of creating an enduring power of attorney, and would draft the enduring power of attorney accoridng to the Donor’s specific instructions.
The new regime requires the Donor to create a MyGovID, register directly with the DSS (using an online portal), and to create an account. The Donor is then expected to complete an online submission to the DSS in which the Donor, without any legal assistance, is expected to specify the nature and extent of the enduring power of attorney, the property to which it relates, the manner in which the powers to be given to the Attorney(s) are to exercised, and various other matters. On completion of the online form, the DSS automatically generates the relevant documentation and sends it to the Donor in electronic form.
The Role of the Solicitor
A solicitor is not permitted to register on a Donor’ behalf. Solicitors cannot oversee the process of EPA creation and have no advisory role in connection with the preparation of the EPA.
However, solicitors are expected to interview the Donor and make “any enquiries necessary for the purposes of making a statement as required by 60(1)(b) of the Assisted Decision-Making (Capacity) Act 2015″, and thereafter to certify that:
- the Donor understands the implications of creating the enduring power of attorney;
- the Donor is aware that s/he may vary or revoke the enduring power of attorney prior to its registration;
- the solicitor has no reason to believe that the Donor is executing the instrument a result of fraud, coercion or undue pressure.
The Liability of the Solicitor
Aside from the normal (and onerous) duty of care that a professional solicitor owes to a client, and aside from the liability that could attach for making a certification statement that was in any way inaccurate, there are additional concerns for solicitors.
Section 96 of the Assisted Decision-Making (Capacity) Act 2015, headed “Investigation by Director”, provides that any person can be summonsed to attend as witness before the Director of the DSS, be examined on oath and be compelled to produce to the Director any document in the power or control of the witness. Further, in the event that the person fails to comply with a requirement, hinders or obstructs the investigation, he/she shall be guilty of an offence and liable to a Class A fine.
Dublin Solicitors Bar Association
The President of the Dublin Solicitors Bar Association, Susan Martin, published the following message on LinkedIn in mid-May:
“As well as the changes to Wardship, the new Act also imposes an additional obligation on Enduring Power of Attorney (‘EPA’) Donors to register their EPA document at the time it is created. Members will be aware that prior to the commencement of the Act, the obligation to register came after the Donor had lost capacity, in order to enrol the EPA.
Many of you have contacted me and our Mental Health and Capacity Committee over the past few days to alert the DSBA to the practical issues and concerns which have arisen with the creation of EPAs since 26th April 2023. These include:
· Necessity for the Donor to register directly with and create account with Decision Support Service (‘DSS’);
· Requirement for the Donor to use the online prescribed EPA form only;
· Obligation on Donor to prove their identity through use of Public Services Card and then creation of MyGovID;
· Compelling the use of PSC and MyGovID;
· Work around for the identity is through the use of paper forms on an exceptional basis; these forms can only be provided to the Donor directly;
· EPA Forms only available to the Donor directly and cannot be drafted by their solicitor;
· Exclusion of the solicitor from oversight of the EPA process and removal of the solicitor from any advisory role in connection with the preparation of the EPA (compared to previous system) – our limited involvement comes at the end, after the EPA is created to certify whether the Donor understands the contents of the EPA as presented by them to the solicitor and enters into it freely.
· Obligation on solicitor to certify that they have no reason to believe that the Donor is executing the instrument as a result of fraud, coercion or undue pressure without oversight of the entire procedure.
· The attention of solicitors is particularly drawn to Section 96 of the Act ‘Investigations by Director’ which provides that any person can be summonsed to attend as witness before the Director of DSS; be examined on oath and to produce to the Director any document in the power or control of the witness;
Furthermore, in the event that the person fails to comply with a requirement; hinders or obstructs the investigation he/she shall be guilty of an offence.
DSBA Council met on 17th May 2023 to consider the matter and I have today written to the Director of the DSS to request an urgent meeting in order to bring our concerns to her immediate attention. I am also raising this as an issue with other relevant stakeholders.”
Individual Solicitor Reactions
Here is a selection of reactions from individual solicitors, as published in response to the DSBA LinkedIn post:
“Many of us attended a Law Society Webinar only days before the new procedures came into effect. Even on that day, there was still lack of clarity around those procedures. Bearing in mind that the Capacity Act has been on the Statute Book since 2015 and there were many false starts, it is extremely disappointing that the Law Society (or the DSBA, for that matter) do not appear to have been properly consulted in advance of those new procedures coming into effect. Such lack of consultation will lead to many problems and Civil Court disputes in the long term. Is it too late to rectify this?” (link)
“It’s an absolute shambles. There was nothing wrong with the old system. Now we have a totally unworkable system.“ (link)
“If only details on practice/procedure/codes/systems were published in a timely manner before commencement, rather than at the 23rd (or even for some items the 26th hour!), practitioners in the ADMCA sphere would have flagged these and many other significant concerns/issues which could have been addressed pre-26/4.” (link)
“The new system is a shambles which right now effectively blocks solicitors and clients from putting an EPA in place. Hard to believe something 8 years ‘in the making’ could be such a mess.” (link)
Letter from Wolfe & Co. to Director of DSS
This letter, written by a number of experienced solicitors in the firm of Wolfe & Co., cogently sets out the various practical issues that have been created by the new regime, under the headings ‘Initial setup of an EPA’, ‘Access to the portal’, ‘Certification of solicitor’, and ‘Attorneys’. It is well worth reading in full (and is published here with the consent of the authors of the letter).
The Law Society of Ireland
On 22 May 2023 the Law Society of Ireland published a Practice Note on Enduring Powers of Attorney in which it set out the position in relation to enduring powers of attorney, and concluded by stating that:
“The move to an online portal in respect of the creation of EPAs was not indicated by the DSS, or any other party, during the long lead-up to the commencement of ADM(C)A.
The Law Society is acutely aware of the operational difficulties that this development poses for clients and their Solicitors, and will be making representations to the relevant bodies to alleviate these difficulties.”
Conclusion
It remains to be seen how these issue will be ironed out. We will keep you posted.