Challenges with the new EPA system
20 July 2023
Little did we realise what world lay before us, when we were reading the 2015 Capacity Act and looking forward to a fresh and modernised capacity regime. Today’s blog is about some of the features of the new EPA system that practitioners are facing and how to deal with them.
- The reality of s. 60(4) of the 2015 Act is now kicking in. This is the provision where the donor must sign the EPA in the presence of the attorney and the witnesses. So there must be four in a room. So if you have a donor (as in my case) living in County Kerry and two attorney children who live abroad, the only way for the EPA to be created is to wait until the two children are back in Ireland and then in addition two witnesses are present. This is preventing EPAs from being executed.
(The above scenario also includes those attorneys who are acting as substitutes. According to a recent call I had with the DSS the DSS have indicated that in cases where the donor is appointing a substitute, the substitute and the attorney must also be present with the donor when executing before the two witnesses.)
- The requirement to have PPS numbers for the attorneys as well is a problem. This means that non Irish attorneys must be manually verified using the Manual Verification Identity Form. From discussing matters with the DSS there is a backlog on these. So, for example, as with many in practice, we act for non-national clients, (eg UK) who have an Irish PPS number but who wish to appoint their children as attorneys. As their children live in the UK and have no PPS the Irish resident attorney now must wait until the manual verification backlog deals with the verification of the non-Irish resident attorney.
On the other hand when one has all the information readily available and your circumstance fits all the boxes, the system appears smooth and easy to operate.
From discussions with the DSS it appears that many are taking up the various forms of support arrangements including appointing decision-making assistants and co-decision makers. It was interesting that on a recent call with an officer on the information line, the officer was surprised by the amount of solicitors refusing to sign the Legal Practitioner Statement with one client calling the DSS stating that she had called to five different solicitors to obtain the statement, but to no avail. Read what you will into that.
I note that the DSS has published as part of the Resources section a Legal Profession FAQ, a link to which is set out below
This does go some of the way to providing a degree of clarity. As part of this the DSS provided guidance to solicitors which was published by the Law Society and can be found as part of the above guidance. I note there is a detailed step-by-step guide to making an enduring power of attorney, which practitioners may find helpful.
So overall there are some challenges, some improvements, and some guidance. However, without a doubt there are still remain a few clouds hanging over the glistening dawn we all expected.
On a brighter note, I see that the Law Reform Commission has produced a consolidated version of the 2015 Act which is most helpful and I attach a link to that here.
Hope all of that helps and have a great day.
Colm Kelly solicitor, founder of theprobatehub.ie