A new system for creating Enduring Powers of Attorney (EPAs), was introduced by the newly established Decision Support Service (DSS), in April 2023 and is proving troublesome many users. This is especially concerning for individuals less adept at using technology – who are often those most in need of an EPA.

The new obligatory online system is proving too complex and off-putting for many, including solicitors traditionally involved in the process. While we generally embrace new technology, the DSS system is not fit for purpose. Unlike other online systems (such as those developed by the Revenue Commissioners, CRO, and Dept of Agriculture) there is no way for an authorised agent to log in and provide support to clients if requested to do so. A Solicitor needs to adopt the fiction they are the client and log in using the clients’ own mygov.ie credentials. This is not a situation this firm can countenance for obvious reasons.

Despite eight years of preparation for the DSS since the Assisted Decision Making (Capacity) Act of 2015, the move to an online portal was never mentioned before its introduction, leaving the legal profession unprepared and unable to serve the public effectively. Had there been consultation it is likely the issues would have been averted.

Prior to the introduction of the new system making an EPA was a relatively simple and straightforward process. While it was paper based, this firm had much of the processes automated. It largely worked well and was quite inexpensive. While the new system is designed so that individuals can largely create their own EPA provided they have a valid MyGov.ie login it is deeply flawed. While the self service aspect of the system in itself might be OK,  the legislation requires that before there can be a valid EPA under, a solicitor (and medical professional) is still required to “sign off” on a process they have no involvement with or oversight over.  In other words we are asked to act as a gatekeeper in respect of a gate we are now allowed pass through ourselves. We are expected under criminal sanction to ensure the rights of those making EPAs are protected, but we cannot do this in practical terms because of the manner that the DSS has created the new system. We also have concerns that the DSS is acting in a way to compromise the Solicitor – client relationship and which may ultimately leave the most vulnerable open to abuse and exploitation.

It is with extreme regret that for now O’Dowd Solicitors can no longer assist clients in making an Enduring Power of Attorney until such time as the DSS facilitates the involvement of Solicitors in a constructive and proactive manner. This is not a decision we take lightly, and of course we will continue to facilitate people making wills and also in dealing with any other legal or succession issues they may have.

As of today (8th June 2023) it appears that the DSS have made certain arrangements to enable a solicitors assist clients in making EPAs. These arrangements are not entirely satisfactory (they are paper rather than electronic and likely to be somewhat slow), but are adequate to allow us to assist clients once more.

If you require any further information please do not hesitate to contact us.