Vulnerable people stuck in the middle of impasse over enduring power of attorney

Approximately a year ago my cousin and I sat down with our uncle who is in his 80s to decide how best to help him with various personal and legal issues he had. We decided together that it would be a good idea for us to set up an Enduring Power of Attorney (EPA) for him, with the two of us as the assigned attorneys to act on his behalf if it became necessary.

We approached his solicitor to set up an EPA but he told us that he was no longer able to do so as, after April 26th, 2023, all EPAs had to be made via the Decision Support Service website.

We then went about setting up the EPA following the instructions on the website, which turns out to be a very difficult process that can only be done if the person for whom the EPA is for has all the modern MyGovIDs, email address and online presence etc.

We eventually worked our way through most of the obstacles and eventually came to a point where forms were generated for us to complete. However, this is where we have encountered a problem that has been created both by the Government and the Law Society.

The form EPA Legal Practitioner Statement must be signed by a solicitor. My uncle’s own solicitor would not sign it and told us that the Law Society has instructed solicitors not to sign it.

So now we find ourselves in a position where we are currently unable to complete the EPA application for our uncle. He lives on his own and has no children. If something happens to him whereby he becomes incapacitated and/or unable to make decisions then we will be unable to help him.

The Law Society seems to have taken the view that the new system which is operated by the DSS is “anti solicitor” and as such they have advised their members not to co-operate with it. The result of this will be many elderly people who need help from their family but will be unable to get it. This cannot be allowed to happen.

Mr D.A.

Oh boy this is a mess. It seems quite clear that a system that was supposed to be designed to be easy to access and navigate, more respectful of the people needing assistance than its predecessor and promising tighter consumer protection is simply not working as intended.

And that’s a real problem because we are in the main talking about vulnerable people who are concerned about their future care if and when they no longer have the mental capacity to make decisions on their own behalf.

An enduring power of attorney (EPA) allows those people decide whom they wish to make decisions on their behalf if they get to that point, and what areas of their life should be covered by those powers – their personal care, their finances, their property or their living arrangements, or all three. In its absence, a court will decide whom should make those decisions and it may be someone who does not know the person at all, their likes, dislikes, hopes, fears and the preferences they expressed before they lost capacity.

The new regime, as you say, came into force last year, many years after the legislation was passed – time which we were told was required to put in place comprehensive structures to make sure the process ran smoothly, was legally watertight and respected the individual more than the previous regime.

It does not cover just enduring powers of attorney but also areas like advance healthcare directives and it replaces the old wards of court system. However, I gather from the Decision Support Service (DSS) – the body charged with providing these services and supervising the arrangements – that enduring powers of attorney account for the lion’s share of their work to date.

There are two broad areas of concern in your letter and, as it happens, there are somewhat interrelated in this dispute.

First is the issue of the “online only” approach to using the system, which can clearly be problematic for some older and more vulnerable individuals. Second, there is a particular logjam at the point in the system where the person making the application has to secure the signature of a solicitor on a form to attest that they are is satisfied that the donor understands the implications of creating the power and that they can vary or revoke the terms of the power of attorney – at least until such point as they lose the capacity to act on their own account.

Finally, that signature also confirms that the solicitor has no reason to believe that the EPA is being executed as a result of fraud, coercion or undue pressure, which is clearly critically important in terms of addressing the dangers of elder abuse. I have seen more than enough letters coming across my desk to understand that, much as we like to think all families operate harmoniously and in the best interests of each other, that is very far from the case.

EPA can provide very significant power and control to the “attorneys” – the relatives, friends or professional advisers – who will be making decisions on someone’s behalf. Care is required.

What appears to have happened is a clear clash between what the DSS considers to be the steps it needs to undertake in order to protect the integrity of the system as is required of it under the 2015 Act and solicitors’ legal obligations on how they manage the relationship with clients and standard of care they are required to respect under pain of court censure.

I don’t know all the ins and outs of it but I suspect that a level of distrust and a degree of heels being dug in has occurred on both sides.

This is supported by some of the figures that I have been able to dig out.

The DSS says that, as of May 29th, more than 3,000 applications for EPA have got to the stage are at the stage where the donor – the person initiating the process and who will be cared for under its terms – has at least finalised the EPA instrument and progressed to accessing the supporting documents required under the 2015 Act, including that “capacity statement” from a doctor and a “legal practitioner’s statement”.

That can be set against the forecast in a 2021 report by the service that said a reasonable estimate for the first six months of operations would be 5,556 decision-support arrangements.

However, in answer to a parliamentary question in April as the service had been up and running for a year, the junior minister at the Department of Children, Equality, Disability, Integration and Youth, Anne Rabbitte said just 167 applications for enduring powers of attorney had been approved by the DSS as required for them to be registered.

The DSS says that number has now hit 247, with another necessary documentation under review in another 990 cases.

That compares with 1,581 enduring powers of attorney registered with the High Court in 2022 and 1,234 in 2021. That’s a big gap and suggests there is a major logjam in the system – even more so when you consider that, under the old system that applied in 2021 and 2022, the powers were only registered with the court when they needed to be activated whereas the figures under the new act is simply for the powers to be drawn up and approved, not activated.

Interestingly the Minister of State also disclosed that between one in six and one in seven applications for an EPA was being done manually – Ie outside the online myDSS.ie portal.

I believe all sides support the new legislation and are keen to make it work. No one wants this system to fail and everyone is acutely aware of how important it is that the elderly and the vulnerable are taken care of in the way they would wish to the greatest degree possible.

I do understand that you have not had any response from the Law Society and I can clearly hear your frustration at what you believe is obstruction on its part – both your own and, to some degree, that of some of the other people to whom you have spoken.

However, I have seen the guidance note (not instruction) issued by the Law Society to its members and there is nothing in it that precludes a solicitor filling out the form required of them in this process as long as the two are known to each other.

What is clearly a problem for the Law Society and what it does caution against is getting involved in quick-fire form filling for people who arrive on their doorstep with no previous recognised relationship.

To be fair, that seems very reasonable. How a solicitor can satisfy themselves on the basis of one appointment and interview with a person whom they may never have met before that they are not acting under duress seems far-fetched.

Under the old system, the legal people would generally have been involved from the start, with a person who is an existing client or whom they meet several times during the process.

The legal people clearly feel that they are being placed in an impossible position. They insist it is not a concern about fees or control of the system, simply it’s properly serving their clients and protecting their professional integrity. The guidance that they have circulated refers in that respect to case law, including an EPA case under the old law where the “requirements incumbent upon a solicitor, would suggest that where a practitioner is unable to undertake a thorough engagement with the person wishing to create an EPA, they are unlikely to be able to provide the requisite legal statement”.

“It is reasonable to expect that the court will require a high professional standard and duty of care on the part of the solicitor,” the guidance says, and it is difficult to argue with that.

On the other concern – the pressure to do the whole thing online – the Law Society says “the narrow and restrictive ‘digital first’ approach does not adequately take into account the digital proficiency of some elderly or vulnerable people, or those who are already likely to be disadvantaged”.

It also says that the way it has been set up precludes solicitors managing the process on behalf of clients.

For its part, the DSS says it accepts that it is the prerogative of every donor to instruct a solicitor in relation to the making of an EPA and indeed that this is “particularly advisable in more complex EPA’s”. It says its records show solicitors have been “on record – Ie instructed in the making and registration of the EPA- in approximately 25 per cent of EPA applications received”.

The DSS notes that it has been designed and resourced as a “digital first” service. It says that this is in line with Government policy and the decision to go this route was “informed by expert advice and the experience of other jurisdictions”.

The minister in her response to the parliamentary question said the law requires the EPA under the new system to be searchable on a register, hence the reason for the focus on the online process.

My guess is, as with any new legal process designed from scratch, accommodations and amendment in how things are done will have to be made over time to ensure the process is workable and delivers on its laudable ambition. As you say, the sooner, the better. The current impasse is serving no one, especially those people concerned that it may shortly be too late for them to make their wishes known and accepted.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com with a contact number. This column is a reader service and is not intended to replace professional advice