This Practice Note supersedes the Practice Note on the same topic issued 22 May 2023.
On 2 March 2012, the Law Society’s Guidance & Ethics Committee issued guidelines for practitioners on Transactions involving vulnerable/older adults (to include requests for visits to residential care settings).
The guidance acknowledges that all individuals, no matter how vulnerable, have a fundamental right to control and manage their affairs and to have access to a Solicitor. It further states that vulnerable and older adults have a right to be protected from financial abuse and that Solicitors, working in co-operation with others in caring for an individual, can have a pivotal role in ensuring that to be the case.
In order to fulfil all ethical and professional obligations in respect of the execution of Enduring Powers of Attorney (EPA), Solicitors must be vigilant of a wide range of risk factors in the area which include undue influence, unconscionable conduct, conflict of interest and fraud.
Practitioners will be aware of changes to EPAs brought about by the commencement on 26 April, 2023 of the Assisted Decision-Making (Capacity) Act 2015 (as amended) (ADM(C)A). Section 94 of ADM(C)A requires that the Mental Health Commission appoint a Director of the Decision Support Service (DSS) to perform specific statutory functions, including functions relating to the registration of newly created EPAs. The DSS has created an online portal for the creation of EPAs.
EPAs under the ADM(C)A require the provision of a Legal Statement to be provided by a legal practitioner pursuant to Section 60(1)(b) of the 2015 Act, which requires of the legal practitioner that “after interviewing the donor and making any necessary enquiries, he or she;
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is satisfied that the donor understands the implications of creating the power,
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is satisfied that the donor is aware that he or she may vary or revoke the power prior to its registration, and on or after its registration until the attorney notifies the Director under section 71A that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power of attorney and this notification has been accepted by the Director under section 71C, and
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has no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure;”
Therefore, a practitioner in this context must at a minimum:
- interview the donor,
- make any necessary enquiries,
- be satisfied that the donor understands what they are doing in creating the EPA,
- be satisfied that the donor is aware that they may vary or revoke the power prior to registration,
- be satisfied that the practitioner has no reason to believe that the donor is not creating the EPA because of fraud, coercion, or undue pressure.
While there may be other modes by which a solicitor may place themselves in a position to be able to provide such a broad statement, and in the interests of access to EPAs, practitioners should consider the possibilities in such respect on a case-by-case basis, it is nonetheless unequivocal that the clearest way to be able so to do is to be involved in the process from start to finish. There is no prohibition in the ADM(C)A or in DSS processes on the practitioner assisting clients in navigating the DSS portal for the creation of EPAs. Where such are being inputted by the practitioner providing assistance and advice to the client, clear authority for the solicitor’s receipt and use of username / password / personal data should be obtained and retained on the file.
Moreover, solicitors should be wary of providing the legal statement where the client arrives to the solicitor’s firm seeking just the legal statement with the remainder of the process conducted elsewhere. It may be more difficult to be satisfied that the practitioner has no reason to believe that there has been no fraud, coercion, or undue pressure, in circumstances where the solicitor has had no knowledge of what occurred when the process was commenced online elsewhere.
On plain reading the threshold in the 2015 Act that the legal practitioner “has no reason to believe…” that fraud, coercion, or undue pressure have been a factor, may seem like a low bar.
However, when you consider the judgement of Ms. Justice Baker in the High Court (as she then was) in the SCR case, together with other judgments relating to the practice of solicitors such as Ross v. Caunters [1980] Ch. 297 extending the duty of care to third parties, (which was preceded presciently in Ireland by obiter dicta in Finlay v. Murtagh [1979] IR 249 and endorsed in Wall v. Hegarty [1980] ILRM 124), it is reasonable to expect that the court will require a high professional standard and duty of care on the part of the solicitor. In particular the SCR case (relating to an EPA under the Powers of Attorney Act, 1996), insofar as it considers 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.
The famous comments of Mr. Justice Barron in Doran v Delaney [1996] 2 ILRM are worth remembering: “The solicitor is not a conduit pipe. Once he is acting professionally, he warrants that so far as his own acts are concerned he has taken the care and applied the skill and knowledge expected of a member of his profession. He cannot therefore accept his client’s instructions without question when it is reasonable to query them.”
The DSS has also issued a Code of Practice for Legal Practitioners pursuant to Section 103 of ADM(C)A. The attention of practitioners is drawn to this document. In particular, in the context of providing the Legal Statement at paragraph 2.6.3, the DSS statutory Code of Practice for Legal Practitioners stipulates as follows:
“It is therefore important for you, to fully explain the scope, purpose, and implications of an enduring power of attorney and ensure that the donor understands these. You should make and record full and detailed notes for reference should any query arise…”
These requirements are critically important as the DSS may, as part of an investigation (e.g. in respect of the validity of an EPA or suitability of the Attorney), request relevant records or information and/or summon the legal practitioner as a witness. As such, the provision of the legal statement is not a perfunctory exercise and any practitioner who provides such a statement will have to engage fully with the client, taking a detailed attendance note in accordance with good professional practice and the requirements of the DSS’s Code of Practice for Legal Practitioners.
The level of engagement required for a solicitor to be in a position to provide the necessary statement as to capacity for the purposes of completion of an EPA creates a solicitor/client relationship. As such, solicitors will be required to observe all requirements for those relationships which include obtaining anti-money laundering documentation, issuing Terms and Conditions of Engagement, taking full and comprehensive instructions from the client and providing advice in a manner/setting which mitigates against the risk of undue influence, coercion, or fraud by third parties.
Where a Donor is varying or revoking an EPA Section 73(4)(b) of ADM(C)A requires a legal statement in similar terms, and the same considerations set out herein apply in those circumstances mutatis mutandis.
The Law Society continues to engage with relevant Governmental Departments in relation to the elements of the ADM(C)A which pose difficulties for clients. Similarly, the Law Society has had engagement with the DSS in relation to the operational issues encountered by clients and their solicitors with engaging with the online portal for the creation of EPAs.
The Law Society will continue to liaise with the DSS, other relevant stakeholders, and State entities in relation to improvements in the processes and requirements for the creation of EPAs.