The Law Society has long been supportive of improvements and enhancements in the assisted decision-making framework in the State, most particularly the introduction of a tiered system of supports (Decision-Making Assistants, Co-Decision Makers and Decision-Making Representatives) to replace Wards of Court. 

Preparation for the new legal arrangements has been a primary focus of the Law Society’s Mental Health Law & Capacity Task Force. Thank you to the many solicitors who have engaged with the Task Force to highlight your concerns in respect of changes to EPA procedures.

Following our update on 2 June 2023, the Chair of the Mental Health Law & Capacity Task Force, Áine Hynes SC and Director General Mark Garrett met the DSS Director and her team to discuss those issues. We are grateful to the DSS for their helpful response to addressing your queries. In recent weeks the DSS has also heard from, and met with, other organisations, including the Dublin Solicitors Bar Association (DSBA) on similar issues.

Following these discussions there are a number of points worth clarifying about the new process that the DSS has put in place. These are outlined below, together with a link to full guidance issued by the DSS, and we will continue to engage with the DSS on a number of outstanding issues that have been raised. 

To start with, it is important to highlight that while the new EPA procedures will provide people with an opportunity to deal directly with the DSS on EPAs, the DSS acknowledges that it is the prerogative of any donor to instruct a solicitor.

Steps for Creation and Registration of an Enduring Power of Attorney (EPA) with the DSS

The DSS has helpfully written to the Society setting out a series of steps that a solicitor can take when instructed in respect of the creation and registration of an EPA. The full text of the DSS note on the end-to-end process including letters of authority, ID verification, completion of applications and the submission of supporting documentation is available at the link below and I encourage practitioners to read this guidance in full:

• Steps for DSS guidance on creation and registration of an EPA

The guidance provided by the DSS addresses the following points:

For applications undertaken online, the creation of a verified MyDSS account on the DSS portal is required. Whether the application is begun online or offline, a verified online account will be created for every donor. Once the EPA instrument is approved and registered by the DSS, it is retained on the DSS register in a digital format only. 

A step-by-step guide to using the MyDSS portal to make an application to register an EPA is available on the DSS website or click on the link below:

• MyDSS online Portal Help | Decision Support Service

Acting for a donor creating an EPA

A solicitor can write to the DSS with a letter of authority signed by the donor in order to be recorded as an authorised contact. The template letter that a solicitor can send to the DSS is available on the DSS Forms page at the link below:

• Forms | Decision Support Service

If the donor is not in a position to create an online account, for any reason, then (along with the letter of authority) the solicitor can supply a form to verify the identity of the donor. This form to verify identity is also available on the DSS Forms page at the link below:

• Forms | Decision Support Service 

In response, the DSS will write to inform the solicitor that the donor’s identity has been verified and the solicitor has been added to the DSS system as an authorised contact in respect of the EPA, in accordance with the letter of authority.

If the donor is unable to use the MyDSS portal at this point, the DSS will also enclose an EPA paper application form unique to the donor.

The solicitor returns the completed application form to the DSS by post or email.

On receipt of the completed application form, the DSS will create an online entry on the system for the EPA application. The DSS then generates the supporting documents which are:

• EPA instrument template

• Donor declaration

• Attorney declaration

• Legal practitioner statement

• Statement of capacity

• Notice form

• Notice party details form

The DSS sends these documents to the solicitor to be completed. The solicitor returns the completed documentation to the DSS for processing, review and registration as per the provisions of the 2015 Act. The fee for registration is payable at this point.

At any point during the manual process as described, the application may instead be progressed online with the necessity for fewer steps and exchange of correspondence.

For further guidance, a full suite of specimen completed documentation is available at the link below:

• Forms | Decision Support Service 

The DSS has stated that, if you have any queries during this process, you can contact them at the DSS email address queries@decisionsupportservice.ie or phone (01) 211 9750.

The Law Society will continue to engage with the DSS on these and any other issues of concern for solicitors as the new framework around assisted decision-making continues to take shape. We are prepared to examine the case for a DSS portal for solicitors, something that we know has been raised by practitioners and to continue our communication with the DSS as we build our understanding of the new arrangements. The DSS has made clear that it is happy to continue this communication.

If you would like to share any queries or issues with the Mental Health Law & Capacity Task Force, please contact us by email at mhlctf@lawsociety.ie.