Solicitors ‘increasingly frightened’ of EPOAs
Former Minister for Justice Senator Michael McDowell speaking in the Seanad this morning (26 March) on the Assisted Decision-Making (Capacity) (Amendment) Bill 2026 spoke on the practical failures of the current system and the reluctance of many legal practitioners to engage with it.
The senator tabled an amendment to make a simple amendment of the deadline for the exit of wards of court from wardship for an additional 12 months, to 26 April 2027, and a further extension if necessary in individual cases to October 2027.
Defeated
However, the amendment was defeated in a tá/níl vote.
It is estimated that 1400 wards of court are affected by the existing deadline under the act, of 26 April.
They may be left in a state of limbo because the statutory authority to manage their affairs will expire without a new structure in place.
The bill introduces flexibility to the timeline while maintaining an "outer limit" to ensure the transition eventually finishes.
Courts can grant an extension if there is a "good reason" and it is in the interest of justice.
For wards turning 18 near the deadline, the court has specific discretion to extend the timeline to allow for proper evidence gathering.
Cumbersome procedures
Senator McDowell said that the current EPOA procedures are so cumbersome they are actively discouraging legal professionals from helping families.
“When an act as groundbreaking as the 2015 act comes into effect, it's hugely important that it isn't just put up on the shelf there as an achievement in the department, but that it's immediately monitored as to how it's actually working,” he said.
“Solicitors acting within a general practice, particularly smaller sized solicitors’ practices, are becoming increasingly frightened of the enduring power of attorney procedure,” he commented.
“They are too difficult to comply with, and they are too troublesome to comply with …,” he said, particularly given the hours of work involved.
This is not a simple procedure like making a will, he commented.
Senator McDowell told the Seanad that there would be no wills made in the country if the process was as difficult as that for EPOAs.
“The process is immensely difficult, and the time has come for your department, Minister, to simplify the procedures, to make them easier, to make them less demanding, especially for solicitors who have all the best intentions for their clients.
'Hard, difficult work for solicitors'
"This is not profitable work. This is difficult, hard work for solicitors, and it goes so badly wrong that many of them would prefer not to do it at all,” he added.
He strongly criticised the requirement to notify all children of the family when an individual creates an Enduring Power of Attorney (EPOA), viewing it as an infringement on personal privacy.
"The obligation for somebody who's contemplating the [Enduring] Power of Attorney to notify all their children is offensive to many people. It's a private matter for them, and it’s not the business of all their children," he said.
"They may have difficult children and supportive children... and there is such a thing as the privacy of the person who’s facing disability."
McDowell added that passing "groundbreaking" law is meaningless if its real-world application isn't monitored and corrected.
Scaring people away
"There is a job of work to be done to make sure that the 2015 act doesn't, in fact, have the counterproductive effect of scaring people away from remedies which should be widespread."
He noted that while he accepts the necessity of the "emergency" extension to the deadline, the underlying issues remain unaddressed.
"The time has come for your department to engage with the Law Society and say what is wrong with the present process that people are afraid to avail of the remedies which are there," he added.
"Please do not think that [passing] this [amendment] solves the problems. There are wider problems," he said.
Minister Emer Higgins said that her department was eager to collaborate in order to solve the problems.