Enduring Powers of Attorney are processed by the Decision Support Service. They aim to bring the creation and registration of the Enduring Power of Attorney online through their portal, which they have created to allow individuals (also known as Donors) to set up Enduring Power of Attorney directly themselves.
Elements that haven’t changed
Under the new process, it is still necessary to get a Solicitor to sign a Statement to confirm that the individual understands the Enduring Power of Attorney. It is also necessary to get a Doctor to confirm that the individual creating the Enduring Power of Attorney has the requisite capacity to understand it.
Elements that have changed
Beyond that, when setting up their Enduring Power of Attorney on the Decision Support Service portal, you would need to appoint an Attorney/Attorneys and select two Notice Parties, which typically need to be blood relatives who are notified about the creation of the Enduring Power of Attorney to comply with the legal requirements as set out under the Assisted Decision-Making (Capacity) Act 2015 (as amended).
This has taken the process largely away from the Solicitors save for the signing of the Statement, which requires the Solicitor to meet with the individual creating the Enduring Power of Attorney and discuss the consequences of it with them. The Solicitor will also need to be satisfied that the individual creating the Enduring Power of Attorney understands it.
The New Enduring Power of Attorney Mechanism
Under the new Enduring Power of Attorney mechanism, which the Assisted Decision-Making (Capacity) Act 2015 (as amended) established, Attorneys now need to keep and maintain accurate records, especially in relation to accounts and they need to also clearly set out why they have made particular decisions on behalf of the person that has set up an Enduring Power of Attorney.
The Decision Support Service ultimately has oversight in respect of how the Enduring Power of Attorney operates and there is an obligation on the Attorney to report to the Decision Support Service within the first three months of an Enduring Power of Attorney being activated to provide a Schedule of assets and liabilities and also the projected income and expenditure for the Donor’s care.
It is important to note that a visitor from the Decision Support Service can be sent to inspect and check the arrangement of the Enduring Power of Attorney and how it is operating. These people can request specific information, so it is important that records are kept.
Additional Points to Note
Another point in relation to Enduring Power of Attorney under the new Act is that a person cannot be an Attorney in circumstances where they are the relevant person in an active decision support arrangement (this is a separate arrangement from an Enduring Power of Attorney.) There are other restrictions for bankrupts and other individuals from acting.
In circumstances where there is a General Power of Attorney there is also an obligation on the donor to submit annual accounts. An annual Report in respect of decisions made is required to be submitted every year, in addition to the two reports to be submitted within the first three months of the Enduring Power of Attorney coming into force.
If there are any changes to be made to the Enduring Power of Attorney, an entirely new one needs to be made and there can be no alterations made to the old one. In the event an attorney wants to resign under an Enduring Power of Attorney that is in force they must apply to Court if they want to resign.
Some of the restrictions on what can be done with the Enduring Power of Attorney include the attorney being able to refuse or consent to particular medical treatments on the donor’s behalf. The Enduring Power of Attorney will not take the place of an Advanced Health Care Directive and of course an attorney cannot make a will on behalf of the donor.
Registering an Enduring Power of Attorney
The fees for an Enduring Power of Attorney that are charged by the Decision Support Service are €30.00 to register an Enduring Power of Attorney and €90.00 when the Enduring Power of Attorney needs to be activated. There is also an additional sum of €30.00 to be paid in the event that the Enduring Power of Attorney is to be changed i.e. cancelled.
Please note that the process surrounding the Enduring Power of Attorney is constantly being updated by the Decision Support Services so the position above may change from time to time. For further information please review the Decision Support Services website on www.decisionsupportservice.ie
