Creating an Enduring Power of Attorney under the New System

Creating an Enduring Power of Attorney under the New System

The process for making an Enduring Power of Attorney (“EPOA”) has recently changed but a lot of the details and matters to be considered remain the same.

If you are considering making an EPOA you would need to consider the following matters:

1. Who you wish to appoint as your Attorney(s). You may decide to have one Attorney and have a replacement Attorney listed in case the original Attorney is not in a position to act or you can have more than one Attorney.
2. You need to decide what type of decisions you want your Attorney(s) to make on your behalf;
3. You may have decisions you do not want or need help with;
4. You need to decide what authority you wish to give to the Attorney(s);
5. You need to decide if you wish to pay them for acting as Attorney;
6. You need to complete an identity verification application form which is available from the Decisions Support Service which must be completed before they will process any application.

Under the old system, clients would have attended with their Solicitor to discuss the above matters and following that meeting the Solicitor would have drafted the EPOA before arranging an appointment for it to be signed.

Under the new system, the person wishing to make an EPOA needs to set up an account on the Decisions Support Services portal in order to complete an application online or alternatively, a paper application form can be completed.  The form contains several sections which are quite similar to the old EPOA template.

1. There is a Donor Declaration Form which the person wishing to make the EPOA signs in front of two witnesses in which they confirm that they understand and agree to the contents of the EPOA;
2. There is an Attorney declaration form which the Attorney must sign in front of two witnesses;
3. There is a Statement of Capacity Form which a doctor or other Health Care Professional must complete after they have assessed the Donor and are happy they have capacity;
4. The Legal Practitioner Statement is the section which the Solicitor will complete having interviewed the Donor to ensure they understand the implications of making the EPOA;
5. The Notice Form which is a form that you give to your Notice Parties to let them know about the EPOA.

Once your Solicitor has explained the implications of the document to you and you wish to proceed and the Solicitor is happy that you understand, they will then sign the Legal Practitioner Statement. The person making the EPOA and any Attorneys that they have chosen must sign the Declarations of the document in front of two witnesses, who are both over 18. At least one of the witnesses must not be an immediate family member of the Donor or their Attorney.

Once all the sections of the EPOA have been completed, it is now a requirement that within three months of signing the EPOA must be registered with the decisions support service.

When the EPOA is being completed, you must give a full copy of the EPOA to the following people:

• Your spouse/civil partner/co-habitant;
• Any of your children over the age of 18 years;
• Any decision supporters appointed under a decision support arrangement. They must each be given a full copy of the EPOA including the signed Declarations;
• The Doctor must be given a copy of the document and the signed Declarations.

Each of the above people must be given the Notice form as they are deemed to be Notice Parties along with a copy of the full EPOA (including signed Declarations).

Once all the relevant document has been signed, it can be uploaded to the portal or if you do not use the portal, it must be sent to the Decision Support Service.

Please note that you must give details of the witnesses and Notice Parties at that time and pay a registration fee for the application submitted. The registration fee is €30 and the fee for revoking an EPOA is €90. The fee the Decision Support Service charges for bringing the EPOA into effect is €90 but there may be other additional costs incurred to include legal or doctor’s fees.

The Decision Support Services will review your application once it has been submitted to confirm it meets with the legal requirements and if they have any queries, they may revert to you regarding same. They will then decide whether to approve or decline the application. if they decline the application, they will let you know and provide further information and you can ask them to review the decisions or appeal it to Court.

If your application is approved, they will let you know, and notify your Attorneys.

As per the old system, the EPOA will not come into effect until your Attorney notifies to say that you are unable to make decisions for yourself.

For further information please do not hesitate to contact Pauline Horkan, Lorna McArdle, Donna Phelan or SallyAnn McCoy on 01 2960666