What should be considered a necessity and as important as making a will should not be limited to the old and vulnerable. It is a step we must all take to protect ourselves in uncertain times and from possible exploitation in the future.
Assisted decision-making
How can the Assisted Decision-Making (Capacity) Act 2015 deliver in providing protections that are so desperately needed?
The act, as amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022, introduces significant reforms in the area of assisted decision-making but, critically, recognises that different levels of assistance can be required when making decisions and that, although a person may lack decision-making capacity in one matter, this does not necessarily mean that they also lack capacity in another matter.
One area that will be significantly reformed is EPAs. These are legal documents by which one appoints a person (an attorney) to make decisions regarding one’s financial and personal affairs in the event that one no longer has mental capacity. Once the act is commenced, no new EPAs can be created pursuant to the current governing legislation, the Powers of Attorney Act 1996.
Enduring power of attorney
EPAs are governed by part 7 of the act and can cover decisions relating to property and affairs and/or personal welfare. Decisions relating to future health (such as consent and refusal of medical treatment) are expressly excluded under the act.
This is a critical distinction between the new form of EPA under the act and the existing form of EPA. Another document, known as an ‘advance healthcare directive’ (AHD) can be executed, which sets out one’s instructions in relation to healthcare treatments in the future.
AHDs are provided for in part 8 of the act. As both EPAs and AHDs involve a total loss of capacity, it would be more than prudent for one creating an EPA to also execute an AHD simultaneously.
The first step when considering an EPA is to select a person who will be appointed as attorney and who is completely trusted to make decisions about property, finance, and personal welfare.
This is not a decision that should be made with haste, but must be carefully considered with the proposed attorney as, indeed, many a person may not want the responsibility of taking on such decisions and obligations.
The act provides that, at a minimum, this person must be over the age of 18, should not be a restricted person as set out in the act, and should be able to perform the functions of an attorney.
More than one attorney can be appointed at any time and, where two or more persons are empowered to act jointly as attorneys, in the event of the death, lack of capacity, or disqualification of any one or more of them, the remaining attorney may continue to act unless the instrument expressly provides to the contrary.
Formalities required
In order to ensure that EPA is validly made, specific statements (which are considered supporting documents) must be included in the instrument. These statements are made by various individuals, including the donor, the attorney, a medical practitioner, and a legal practitioner, and they primarily demonstrate and confirm the donor’s capacity and understanding of creating the EPA.
The EPA must be in writing and must comply with part 7 of the act. Once the EPA is executed, notice must be given to various individuals set out in the act as soon as is practicable thereafter, and an application to register the instrument must be made to the director of the Decision Support Service (DSS) in the form required by the act by the donor, or by the attorney with the donor’s written consent, no later than three months after the date of execution or the date of receipt of all supporting documentation, whichever is the later.
Once the application is received by the DSS, the director is responsible for reviewing the EPA, any objections received on the registration of the EPA by persons who the director is satisfied have sufficient interest or expertise in the welfare of the donor, and for ensuring that the instrument complies with the formalities of the act.
Once the EPA is registered, it cannot be revoked by the donor, unless the court confirms the revocation. This applies for so long as the EPA is registered, and whether or not the donor has capacity.
A significant introduction by the act is that a register of instruments creating EPAs shall be established and maintained by the director.
Restrictions and ineligibility
It is important to note that, although a power may be given in relation to personal welfare, the act specifically precludes the attorney from acting in any way that is intended to restrain the donor, unless there are exceptional emergency circumstances (which are set out in the act). In relation to a power to make decisions in relation to property and affairs, an attorney may not dispose of property by way of gift, unless specific provision for this is made within the instrument.
The act also sets out which persons are ineligible to act as attorneys, in addition to providing 12 situations in which disqualification of attorneys can occur.
Activation
The EPA shall not come into force until such time as the donor lacks capacity in relation to one or more of the relevant decisions, the instrument has been registered with the Decision Support Service, and the director has been notified and accepts the notification.
Once an attorney has reason to believe that a donor lacks capacity in relation to one or more relevant decisions, the attorney is required to notify the director in the specified form, and also to provide copies of the instrument to specified persons.
Any notified person with sufficient interest or expertise in the welfare of the donor may object within five weeks of the notice date, following which the director is required to consider same, consult the relevant persons, and decide whether or not the objection is well founded.
Thereafter, the director can either accept or reject the notification, and this decision can be appealed to the Circuit Court within 21 days of the issue of the notification.
Once the notification is accepted, changes to the EPA cannot easily be made. For example, the donor cannot revoke the EPA except in specific circumstances, and the attorney cannot resign unless the court consents, while the scope of the authority conferred in the EPA may not be extended or restricted.
The act does contain some safeguards, in that it sets out procedures by which the EPA can be varied or revoked, and there is also a provision that deals with the scenario where a donor regains capacity after the acceptance of a notification.
Other issues
The act places certain obligations on attorneys, including the requirement to keep proper accounts and financial records regarding income and expenditure, to submit accounts and records, and to prepare and submit a report to the director regarding the performance of his/her functions every 12 months.
The act also provides a mechanism whereby a complaint can be made:
- If someone is concerned that an attorney is acting or proposing to act outside the scope or in breach of their functions,
- Where they are not a suitable person within the meaning of section 59(6)of the act,
- Where fraud, coercion, or undue influence was used on a donor to appoint an attorney, or
- Where the donor did not have, at the time the EPA was executed or the time the EPA was registered, capacity.
Complaints in relation to attorneys empowered pursuant to the 1996 act can also be made to the director, and the process by which the director investigates and deals with such complaints is set out in the act.
It is important for donors and attorneys to be aware that the act sets out a number of criminal offences regarding the use of fraud, coercion, and undue influence in relation to EPAs, and also sets out sanctions for such offences.
Valuable tool
Used properly, EPAs can provide peace of mind for both the person granting the power and for the wider family. They are valuable tools for ensuring that one’s wishes regarding property, affairs, and personal welfare are carried out, while also being flexible enough to be tailored to allow the scope of the powers to be as broad or as narrow as the donor wishes.
Recent calls by various professional bodies (such as the Irish Farmers’ Association) have helped in highlighting the underutilisation of EPAs in the Irish context when compared with our European counterparts.
EPAs and AHDs are important legal instruments that practitioners must consider offering to clients as part of a suite of services when advising on matters relating to estate planning, will drafting, and property.
While the transition from the existing High Court-based regime to the new Decision Support Service-based one may take time for practitioners to become accustomed to, it is hoped that more clients of all ages will choose to execute EPAs and AHDs in the future.
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