How to Make an Enduring Power of Attorney Under the New Web-Based System

 How to Make an Enduring Power of Attorney under the New System
 
Creating an Enduring Power of Attorney (EPA) in Ireland, particularly since the Assisted Decision-Making (Capacity) Act 2015 came into full effect, is primarily managed through the Decision Support Service (DSS). This guide will walk you through the key steps and considerations.
 
What is an Enduring Power of Attorney (EPA)?
An EPA is a legal document that allows you (the "donor") to appoint one or more trusted individuals (your "attorneys") to make decisions on your behalf about your personal welfare, property, and financial affairs, should you lose the capacity to make those decisions yourself in the future. It's a vital tool for future planning, regardless of age. The key word here is Trust, as you are essentially trusting someone to exercise your basic human rights on your behalf when you are unable to do so yourself due to such debilitating conditions as dementia or brain injury. 

Key Differences from Older EPAs:
Since April 23, 2023, new EPAs are created and registered with the DSS. EPAs made before this date under the Powers of Attorney Act 1996 are not subject to the new DSS procedures, and the DSS is not involved in their supervision.

Two Main Stages of an EPA:

1. Making and Registering the EPA: This happens while you still have decision-making capacity. You create the document, appoint your attorneys, and register it with the DSS via their website. 
2. Notifying and Activating the EPA: This stage occurs if and when you lose capacity. Your attorney(s) must notify the DSS that you no longer have the ability to make decisions, and the EPA then comes into effect.

Guide to Making an Enduring Power of Attorney using DSS.ie:

The DSS encourages the use of its online portal, MyDSS, for the most efficient process.

Phase 1: Preparation and Setting Up Accounts

1. We strongly recommend, if you have not already done so, that you open a MyGovID account through www.mygovid.ie. To do this you will need your Public Services Card. Having a MyGovID account will mean that you can open an account on the Decision Making Support Services website and bypass many of the proving-your-identity hurdles. The Mental Health Commission have also excellent video resources which you can access here: ww.youtube.com/watch?v=6Uqvkx2r2tw&list=PLBvDzQ6iTjImdMQHkuo6yRsY0YHTjXU1S&index=1
2. Understand the Implications: Before starting, Murphy McElligott solicitors can help you thoroughly understand what an EPA entails. Consider what decisions you want your attorneys to make (personal welfare, property, finances, or a combination), whether they act jointly or severally, and if you need replacement attorneys.
3. Choose Your Attorneys Wisely: Your attorney should be someone you trust implicitly. They do not need to be a lawyer. Consider their reliability, their ability to manage affairs, and their willingness to take on this responsibility. There are certain restrictions on who can be an attorney (e.g., undischarged bankrupts for property/financial matters).
4. Identify Notice Parties: You are legally required to inform certain people that you are putting an EPA in place. This typically includes your spouse/civil partner (if any), adult children, and if none, your closest blood relative and another person concerned for your welfare. These "notice parties" have a five-week period to object to the EPA on specific grounds (e.g., your capacity, undue influence).
5. Set Up MyDSS Accounts:
   • Your Account (Donor): Go to decisionsupportservice.ie and click on "MyDSS Login" or go directly to portal.decisionsupportservice.ie. If you don't have an account, select "sign up now."
   • Verification: The easiest way to verify your MyDSS account is using a verified MyGovID account. If you don't have one, you can set it up on www.mygovid.ie (See the link above at paragraph 1). If MyGovID isn't possible, contact the DSS Information Services Team for assistance with manual verification.
   • Attorney(s) Accounts: Each appointed attorney (including replacement attorneys) must also set up their own verified MyDSS account. Likewise, the easiest way to do this is getting your Attorneys to set up an MyGovID account using the link above.  

Phase 2: Completing the Application Online via MyDSS

1. Start a New Application: Once logged into your MyDSS account, select "Enduring Power of Attorney" from the "type of arrangement" list and click "start application."
2. Fill Out the EPA Form: The online form has several sections:
   • Relevant Person Details: Information about yourself (the donor), including civil status, living arrangements, and any relevant medical conditions or communication needs.
   • Supporter Details: Information about each of your chosen attorneys (name, date of birth, PPS number, email address - must match their MyDSS account, residential address, relationship to you, how long you've known them). You'll specify if they are main attorneys or replacement attorneys.
   • Existing Arrangements: Declare any other existing decision support arrangements you have.
   • Arrangement Details: Define the scope of authority you are giving your attorney(s). This is crucial. You can grant general authority over personal welfare and/or property and affairs, or specify particular decisions. If appointing multiple attorneys, clearly state whether they must act jointly (all must agree) or severally (can act independently). You can also specify if attorneys should be paid and for what functions.
3. Generate Documents: After filling out the online form, the DSS system will generate the necessary supporting documents, including:
   • EPA instrument template
   • Donor declaration
   • Attorney declaration(s)
   • Legal practitioner statement
   • Statement of capacity
   • Notice form
   • Notice party details form

Phase 3: Legal and Medical Certifications & Witnessing

1. Solicitor's Role: You will still need a solicitor such as Murphy McElligott Solicitors to:
   • Certify that you have the mental capacity to understand what you are doing when making the EPA.
   • Be satisfied that you are making the EPA by your own volition and not under undue influence.
   • One of our solicitors will will complete the "Legal Practitioner Statement."
2. GP's Role: Your General Practitioner (GP) will also need to certify your mental capacity to understand the consequences of making an EPA. This will involve completing the "Statement of Capacity."
3. Signing and Witnessing:
   • The EPA document must be made in writing and signed by you (the donor) and your proposed attorneys at the same time and in front of two witnesses. Many of our clients at Murphy McElligott solicitors use our services for this part of the process. You can arrange your Attorneys and you to sign the documents in our offices and use us as witnesses which automatically fulfills the requirement for witnessing
   • Witnesses must be over 18.
   • At least one witness must not be a family member of yours or the attorneys.
   • Witnesses cannot be an employee or agent of the attorney.

Phase 4: Notifying Notice Parties

1. Formal Notification: You are required to formally notify your identified notice parties about the EPA arrangement. The DSS will provide a "Notice Form."
2. Objection Period: Notice parties have five weeks from the date of the notice to object to the EPA on specific legal grounds.

​Phase 5: Uploading and Registering with the DSS

1. Upload Completed Forms: Once all necessary forms (donor declaration, attorney declaration(s), legal practitioner statement, statement of capacity, notice forms, etc.) are completed, signed, and witnessed, you will upload them to your MyDSS account.
2. Pay the Registration Fee: There is a fee to register an EPA with the DSS (currently €30). This is usually paid at this stage. You may be able to apply for a fee waiver based on income and dependents.
3. Submit Application: After completing all steps and uploading documents, you submit your application to the DSS.
4. DSS Review: The DSS will review your application to ensure all information is correct and meets legal requirements. They will work with you to resolve any issues.
5. Registration: Once approved, your EPA will be registered on the DSS register. The EPA lies dormant until it needs to be "notified" (activated) due to your loss of capacity.

Phase 6: Activation of the EPA (If Capacity is Lost)
If you lose capacity, your attorney(s) will need to:

1. Log into MyDSS and Fill Out Notification Form: Access the registered EPA and complete the "enduring power of attorney notification application form."
2. Medical Assessments: Two doctors and/or healthcare professionals must complete an assessment confirming your loss of capacity in relation to the decisions covered by the EPA.
3. Notify Parties of Notification: Inform specified individuals (including the donor and notice parties) that you are making an application to notify the EPA.
4. Upload Forms and Pay Fee: Upload the completed forms (including the medical statements) and pay any notification fee.
5. Submit Application: Submit the notification application to the DSS.
6. DSS Review and Activation: The DSS reviews the notification. Once approved, the EPA becomes active, and your attorneys can begin acting on your behalf.

Important Considerations:

• Legal Advice: While the DSS provides guidance and an online portal, it is highly recommended to seek independent legal advice from one of our Solicitors at Murphy McElligott. They can ensure your EPA accurately reflects your wishes, is legally sound, and that you understand all implications.
• Capacity: You must have the mental capacity to understand the nature and effect of an EPA when you make it. This is why a solicitor and GP certification are required.
• Regular Review: It's good practice to review your EPA periodically to ensure it still reflects your wishes and that your chosen attorneys are still appropriate.
• Code of Practice: Attorneys are supervised by the DSS and have specific duties and reporting obligations under the Assisted Decision-Making (Capacity) Act 2015 and the Code of Practice for Attorneys.

Murphy McElligott Solicitors can guide you through the entire process. You can also contact the Decision Making Support Services' excellent EPA helpdesk at +353 (01) 211 9750 or [email protected] for assistance.