A solution to the EPA problem?

As reported elsewhere on this website, many lawyers are complaining that the DSS process for creating EPAs is unworkable and needs immediate change. Is there an alternative? I believe so, and here’s why.

TLDR Summary

In my humble opinion there is nothing to stand in the way of practitioners creating EPAs for registration, as follows:

1. Provide the applicant with the supporting documentation and, where necessary, assist with completion.
2. Complete an identity verification form for the applicant and the attorney(s).
3. If necessary, have the applicant and attorney(s) complete letter(s) of authority.
4. Submit the supporting documentation, identity verification forms, letter(s) of authority, and payment, to the DSS.

The Issues

There are many issues but I am going to focus on a few that I think can be worked around. These include:

• the requirement that a person who wishes to create an EPA must first obtain a MyGovID and register with the MyDSS portal;
• the requirement that any attorney the person wishes to appoint must also obtain a MyGovID and register with the MyDSS portal;
• the requirement that an EPA be created using the MyDSS portal and that the signed documentation be uploaded (and paid for) via the MyDSS portal;
• the requirement that the attorney(s) be in presence of the donor when they sign their declaration accepting appointment as attorney(s).

MyGovID and the MyDSS Portal

I’ve written previously about the MyGovID and the potential difficulties in obtaining one. In brief, it’s a relatively long process that cannot be completed online, but instead requires physical attendance at an Intreo office by the individual who wishes to obtain the MyGovID.

However, if you want to use the MyDSS portal, you must have a MyGovID. See this post for more.

Benefits & Drawbacks

The benefits of using the MyDSS portal are unclear. I think there are obvious benefits for the DSS, in that the applicant’s identity is verified before they start using the portal, and insofar as the applicant’s information is inputted (by the applicant) to the DSS database in digital format (making it easier for the DSS to manage and analyse that data).

Are there benefits for the applicant? Well, I don’t disagree that an applicant who is tech-savvy, and already has a MyGovID, will probably find the portal useful. However, I want to raise two specific issues that arise outside of this:

1. An applicant who is not tech-savvy, who does not have a computer, who does not have a MyGovID, and/or who lives in a remote area without ready access to an Intreo office, is probably going to find the process somewhat intimidating;
2. The tech-savvy applicant is still going to encounter difficulties with some of the questions posed in the portal. For example, one of the questions requires the applicant to specify the personal welfare and/or property and affairs decision that the applicant is authorising the attorneys to make. This is a crazy question to try to answer without legal experience. The answer given could be ambiguous, which might lead to litigation at a later stage (after the applicant has lost capacity) about the interpretation and extent of the power given. The answer could be expressed in a way that does not represent the applicant’s true wishes, leading to the attorneys either being given powers they were not supposed to have, or not being given powers that the applicant intended them to have. (Interestingly, the DSS website tells prospective applicants that “there are important legal implications when you make an enduring power of attorney”, but does not advise that legal advice be sought, instead saying that the applicant will only need a lawyer “to interview you to make sure you understand the consequences of making an enduring power of attorney”. See here.)

Requirement to use the MyDSS Portal?

The DSS does not say that you must use the portal, and does not say that there is no alternative. In my view, however, having reviewed the DSS website and having reviewed the step-by-step guide to making an enduring power of attorney, I can say that the availabilty of an alternative to the portal is not prominently featured.

On the page about making an enduring power of attorney, the website says:

“The easiest way to make an enduring power of attorney is by setting up an account on our online portal myDSS and completing an application online. If you cannot access a computer or set up an account online, that is no problem. You can contact us, and we will help you set up your account. Alternatively, you can complete a paper application form. You can contact us and we can post one to you.” (emphasis added)

Circumstances in which a paper application might be refused

The DSS is not obliged to facilitate a paper application. The legislation specifically provides (section 95B) that the DSS can require that documents be in electronic form and be sent or submitted in electronic form (for the definition of ‘electronic form’, see below), and further provides that the DSS may specify the circumstances in which such requirements shall or shall not apply.

Theoretically, therefore, the DSS could refuse to facilitate a paper application. One could imagine that circumstances could arise (eg. all applicants wish to make paper applications, none use the portal) whereby the DSS would impose certain requirements on applicants before acceding to a request for a paper application.

This potential obstacle, however, can be overcome. I explain how below.

Paper Applications – the DSS way

The DSS has, in a letter seen by me, set out the process it follows for paper applications:

“The DSS does not operate an online only process. If a donor has difficulties completing the relevant steps on the online portal, even with support, which may of course include professional support throughout, they may be reassured that the DSS will facilitate an alternative 5-step process.

• a paper form can be supplied initially to verify the identity of the donor and their attorney(s) to substitute the ID authentication supplied by the online system;
• following receipt of this manual identity verification, the DSS will send on the relevant application form for completion, pre-filled with the required details;
• the DSS will create an online entry on the system, based on the manual application;
• the DSS will generate the supporting documents and send these back to the donor for completion and signature to be returned to the DSS as part of their application;
• the DSS will then further update the online entry on the system with the additional information supplied in the supporting documents. Once updated, the fee payment can be made and progressed as a submitted entry on the system for processing by the DSS.”

Commentary

Identity Verification: I don’t know the nature of the paper form that is supplied initially. However, there are already plenty of established methods of verifying a person’s identity, and solicitors are well placed to do so.

Application Form: It appears that an applicant cannot obtain a paper application form until such time as their identity (and that of their proposed attorneys) has been verified to the satisfaction of the DSS. This appears to be putting the cart before the horse somewhat.

DSS creates an online entry: That is entirely a matter for the DSS as part of how they administer their systems. I do not really see why an online entry has to be created before the supporting documentation has been received by the DSS from the applicant. Again, cart before horse.

DSS generates supporting documentation: They call it ‘supporting documentation’ but it is, in fact, the core documentation – the documentation that creates the enduring power of attorney. Anyway, I’ll let that go. What is abundantly clear is that the ‘generated’ documents will likely only contain limited data – the applicant’s name, the attorney(s) name(s), and the DSS Unique File Reference. I cannot see how the documents could contain any additional data when the applicant has not yet supplied it to the DSS. The documents generated by the DSS with this data are not much better than completely blank documents.

DSS then updates the online entry: Again, entirely a matter for the DSS as part of how they administer their systems. Curiously, an applicant’s submission will be in limbo from the time they post it to the DSS until payment has been made (and payment cannot apparently be made until the DSS has updated the online entry).

Fee Payment: It’s not clear whether this fee payment is to be completed online, over the phone, or by cheque. I suspect that the online option would be unworkable (given that the person has chosen a paper submission) and that over the phone would be unworkable also (given the precautions that the DSS is taking to ensure that they have verified the identity of the applicant).

Paper Applications – an efficient way

Here’s what I would propose as an efficient way to manage paper applications:

1. The applicant obtains the supporting documents, either from the DSS (by post), by asking someone to print them out, or by attending with a solicitor who holds blank copies of the template documents on file.
2. The applicant completes the supporting documentation.
3. In addition to the supporting documentation, the applicant (and attorneys) complete an identity verification form.
4. The applicant submits the supporting documentation, identity verification forms, and payment, to the DSS.
5. The DSS then completes whatever administration it needs to complete, whether by way of updating its online database or by way of raising queries (if any) in relation to the application.

The above methodology provides the following benefits:

• The applicant, if he/she requires legal advice or assistance (and, as I’ve pointed out above, it would be somewhat crazy not to obtain legal help) can theoretically complete the process with a single visit to a solicitor (a second visit may or may not be necessary in circumstances where the applicant, the attorneys, and the witnesses must all be in each other’s presence when the documentation is being signed);
• The solicitor has an opportunity to spend time discussing matters with the applicant, which is essential in circumstances where the solicitor will be called upon to certify (pursuant to section 60(1)(b) of the Act) that he/she has interviewed the applicant and has made any necessary enquiries and has satisifed himself/herself, inter alia, that the applicant understands the implications of creating the power;
• The DSS saves administrative time and costs in only having to process a single application into their online system. The way the DSS does it now (see above) means that, for every person who wants the ‘supporting documentation’, the DSS has to create a new online entry before even sending that documentation to the applicant. Every time an applicant does not proceed any further with the application, DSS administrative time and costs have been for nothing, and wasted.

Must the Attorney(s) sign in the presence of the Donor?

The DSS has prepared a form called EPA Attorney Declaration which must be completed by each proposed attorney in the presence of two witnesses.

On the same form, the two witnesses must sign declarations which contain the following statement:

“in my presence and in the presence of the donor, the attorney appeared to freely and voluntarily sign the instrument creating this enduring power of attorney” (emphasis added)

This appears to mean that the attorney must be in the presence of the donor when signing the declaration. This presents serious practical difficulties. One solicitor has stated the problem succinctly:

“In many cases, the donor will likely wish to appoint their nearest and dearest and natural choices, i.e., their children, as their attorneys. In rural Ireland, many of our family members will have moved abroad for work or lifestyle. To expect them to go to the trouble and expense of returning to Ireland in order to sign the form is utterly impractical and unreasonably onerous. This requirement will surely preclude the donor in many cases from appointing the people that they wish to appoint in circumstances where their preferred attorneys cannot travel to Ireland to sign a declaration form.”

DSS Rules & Specifications

As I’ve written elsewhere on this site, the DSS is empowered to make certain specifications in relation to the creation of enduring powers of attorney.

Identity verification at the outset

I cannot find anything in the legislation (section 79A) that gives the DSS the power to require an applicant to verify his/her identity before he/she can obtain the ‘supporting documentation’. The legislation does provide, however, that the DSS “shall ensure that the forms are made available in accessible formats, and take into account the different persons or classes or [sic] persons that will be using or reading the forms” (section 79A(2)).

Arguably, therefore, there is no basis for the DSS requirement that an applicant verify his/her identity before he/she can obtain the ‘supporting documentation’.

It is also worth noting that the legislation mentions the word ‘identity’ only once, and that is in section 58A in relation to ‘Provisions regarding trust corporations’. (This assertion is based on a text search of the LRC consolidated legislation, and is subject to correction).

Requirement to use the portal

As I pointed out above, the DSS is not obliged to facilitate a paper application. The legislation specifically provides (section 95B) that the DSS can require that documents be in electronic form and be sent or submitted in electronic form. What does ‘electronic form’ mean?

‘Electronic form’ is defined in the legislation (section 95B(3)) as:

“information that is generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means and is capable of being used to make a legible copy or reproduction of that communicated information but does not include information communicated in the form of speech and such electronic means includes electrical, digital, magnetic, optical electro-magnetic, biometric, photonic and any other form of related technology”

As you can probably see, this definition makes no mention of an online portal.

The definition would encompass documents that have been scanned (or photographed) and e-mailed to the DSS.

I do not accordingly see any legal basis for requiring applicants to use the MyDSS portal.

Fee Payment Methods

I do not see anything in the legislation, or in the statutory instruments, that empowers the DSS to mandate a particular means by which payment must be made.

Attorney(s) signing in the presence of the Donor

Unfortunately, unlike the other observations above, the DSS is simply implementing the legislation in requiring that the attorney(s) sign in the presence of the donor.

Section 60(4)(a) of the Act provides that:

The donor, or the person signing on his or her behalf in accordance with subsection (3), and the attorney shall sign the instrument creating the enduring power of attorney in the presence of each other and in the presence of 2 witnesses…

Until there is legislative intervention to amend this section and to allow for donors and attorneys to sign their respective declarations other than in each other’s presence, donors will be restricted in their choice of attorney to those individuals who can be physically present for the signature process.

[Curiously, although the section requires the donor to sign in the presence of the attorneys, the EPA Donor Declaration provided by the DSS does not require the witnesses to attest to the presence of the attorneys at the moment the donor signed the EPA. An omission by the DSS, perhaps?]

Conclusions

In my humble opinion there is nothing to stand in the way of practitioners adopting the ‘efficient way’ I have described above, namely:

1. Provide the applicant with the supporting documentation and, where necessary, assist with completion.
2. Complete an identity verification form for the applicant and the attorney(s).
3. If necessary, have the applicant and attorney(s) complete letter(s) of authority.
4. Submit the supporting documentation, identity verification forms, letter(s) of authority, and payment, to the DSS.

Practitioners who wish to adopt this approach may benefit from having the following to hand:

• A full set of editable (MS Word) DSS template documents (available here);
• An identity verification form (included with EPA document pack here);
• Letter(s) of authority (provided in draft format in EPA document pack here);
• A scanner or other means of converting the documents to electronic format;
• The e-mail address for the DSS: [email protected];
• The ability to pay the registration fee (€30, according to SI 202/2023) by cheque, credit card, EFT, or whatever means the DSS might accept.

Future Developments

Stance adopted by the DSS

If legal practitioners who have been asked, by clients, to assist with the creation and registration of an EPA, decide to adopt the approach I have suggested above, what will the response be from the DSS?

Well, I don’t know. I would hope that the response would be constructive and would seek to find an acceptable middle-ground between how the DSS wants things done and how experienced practitioners need things to be done. Were this to be the outcome I’m sure everyone would work together towards a mutually acceptable resolution.

Now, what if the DSS took umbrage? What if the DSS decided to use its existing powers to frustrate the efforts of practitioners to adopt the approach I have suggested above?

Well, again, I don’t know. Having looked at various aspects of the legislation (see above) I don’t believe that there is a whole lot the DSS can do. The DSS could, presumably, petition the Minister for amendments to the legislation and statutory instruments to outlaw certain practices, and who knows where that could go.

In addition, the DSS could use an existing power to require that all documents be signed electronically (see section 96B), thereby outlawing the submission of scanned documents and requiring the use of electronic means to sign the documentation. However, one has to wonder whether such a stance, if adopted, would satisfy a ‘reasonableness’ test. This is particularly so when one considers the requirement, in section 79A(2)(d), that the DSS “take into account the different persons or classes or [sic] persons that will be using or reading the forms” when making specifications.

[Update 8 June 2023: The Dublin Solicitors Bar Association (DSBA) recently met with the DSS and some progress was made. You can read more about that in the DSBA news item here.]

Over to you. Feel free to share your thoughts below, in the comments. We’d all be interested to hear them.