An Enduring Power of Attorney (“EPA”) is a legal document that allows a person to appoint trusted individuals to make decisions on their behalf should they lose the capacity to do so in the future. Since the commencement of the Assisted Decision-Making (Capacity) Act 2015 in April 2023, the creation and operation of EPAs has been governed by a significantly revised legal framework, with enhanced safeguards and oversight through the Decision Support Service.
What is an EPA?
An EPA enables an individual (the Donor) to appoint one or more Attorneys to make decisions concerning their property, financial affairs and personal welfare in circumstances where they are no longer capable of making those decisions themselves. Loss of capacity can arise as a result of a degenerative cognitive condition, injury or other illness affecting a person’s ability to make decisions.
An EPA only takes effect where the Donor has lost decision-making capacity and the statutory requirements for activation have been satisfied.
Why Should You Consider an EPA?
Many clients are surprised to learn that spouses or adult children do not automatically have authority to manage a person’s financial or personal affairs simply because capacity has been lost.
In the absence of an EPA, family members may be required to bring an application to the Circuit Court under the Assisted Decision-Making legislation in order to obtain legal authority to make decisions on behalf of a loved one.
By putting an EPA in place whilst capacity is intact, an individual retains control over who will act on their behalf, the scope of the powers granted, and the arrangements that will apply should they become unable to manage their own affairs in the future.
The New Legal Framework
The Assisted Decision-Making (Capacity) Act 2015 introduced significant changes to the EPA process. EPAs executed after 26 April 2023 must be registered with the Decision Support Service within three months of completion. The Decision Support Service now plays a central role in supervising EPAs and ensuring that the rights, will and preferences of the Donor are respected.
The legislation reflects a modern approach to capacity and decision-making, recognising that capacity is both issue-specific and capable of changing over time.
Choosing an Attorney
The appointment of an Attorney is a significant decision. Attorneys are commonly spouses, children, siblings or other trusted individuals who understand the Donor’s wishes and are capable of managing the responsibilities involved.
The legislation also allows for the appointment of multiple Attorneys and for detailed provisions to be included regarding how decisions are to be made. Careful legal advice at the outset can help ensure that the arrangements accurately reflect a client’s wishes and circumstances.
How We Can Assist
The preparation of an EPA requires strict compliance with statutory requirements, including legal certification, capacity assessments and registration with the Decision Support Service.
At Alan McGee & Co. LLP, we advise clients through every stage of the process, including:
- Preparing and advising on Enduring Powers of Attorney
- Advising on the appointment and powers of Attorneys
- Assisting with Decision Support Service registration
- Advising Attorneys regarding their duties and obligations
- Assisting families where concerns arise regarding capacity and future decision-making
As the solicitor within the firm specialising in Enduring Powers of Attorney and Assisted Decision-Making matters, I work closely with clients and their families to ensure that appropriate legal arrangements are put in place and that their wishes are protected for the future.
Contact Us
If you would like advice regarding an Enduring Power of Attorney or any aspect of the Assisted Decision-Making (Capacity) Act 2015, please contact our office to arrange a consultation.
Early planning can significantly reduce uncertainty for both individuals and their families and ensure that decision-making arrangements are in place when they are needed most.
Cian Boyle, Solicitor