Enduring power of attorney in 2023

Evening.

my parents have suggested that they set up EPA. They are fine now but have seen relatives with dementia incur losses and delays in sorting out finance etc so feel it should be set up with my brother and/or me as attorneys. their estate is simple, pension, a few savings and a house,

I contacted the solicitor who has their wills, drawn up about a decade ago. He has not done any under the new process and said we could do it ourselves. He doesn’t see the need to be involved.

So I did some research. I don’t think my parents will manage it, setting up an account with DSS etc will be beyond them. They don’t do email, computers etc.
it doesn’t sound like I should be doing it for them, doesn’t that defeat the purpose of the DSS If I masquerade as them and handle all the emails etc?
And as far as I can see we will need to go to a solicitor anyway.

it does seem that I can download the forms and my parents can complete them and get the various parts signed by the doctors etc and bring them to a solicitor to be signed by them, them the solicitor can upload them.

am I missing something here?

Annieindublin said:

Evening.

my parents have suggested that they set up EPA. They are fine now but have seen relatives with dementia incur losses and delays in sorting out finance etc so feel it should be set up with my brother and/or me as attorneys. their estate is simple, pension, a few savings and a house,

I contacted the solicitor who has their wills, drawn up about a decade ago. He has not done any under the new process and said we could do it ourselves. He doesn’t see the need to be involved.

So I did some research. I don’t think my parents will manage it, setting up an account with DSS etc will be beyond them. They don’t do email, computers etc.
it doesn’t sound like I should be doing it for them, doesn’t that defeat the purpose of the DSS If I masquerade as them and handle all the emails etc?
And as far as I can see we will need to go to a solicitor anyway.

it does seem that I can download the forms and my parents can complete them and get the various parts signed by the doctors etc and bring them to a solicitor to be signed by them, them the solicitor can upload them.

am I missing something here?

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Many Solicitors (myself included) are not prepared to have clients call in to us with "here's one I prepared earlier" documents for us to sign off. It is far too risky for me to certify: I cannot be sure there is no undue influence when presented with a fait accompli like this. (Google "commitment bias" if you want a more detailed rationale).

Your parents' solicitor may take a different view.

The new system is an ill-considered mess.

Reverting to paper is possible. I don't know the circumstances in which this will be facilitated.

I agree it is a total mess.

and I didn’t intend to present the solicitor with the papers, but arrange an appointment to bring my parents to a meeting with the solicitor, and of course provide all the backups to prove their capacity.
I hear what you are saying about being presented with a fait accompli. I can’t see a way around that, it was dad‘s idea based on the unraveling of the mess an aunt of his got into and a fear that at some stage his mind won’t be as clear as it is now.

it might be easier to get my parents to make the initial call I guess.
on a practical level one of us kids has to do the organising and transport, they can’t drive anymore and will need assistance with any appointment so the optics are not great from solicitor’s view,,, I’ll show up with 2 elderly folk and ask for paperwork to be signed giving me potential access to their property.

ironically the government department were seeking to avoid such situations and protect vulnerable people.

I can't comment on the new method but the old method was very straightforward. I did it with my mother a couple of years ago, solicitor came out to the house, spoke to Mam on his own and was satisfied that she was of sound mind, and this was backed by a doctors letter. We put myself and my sister on the POA and he also wrote to our respective spouses and asked them to confirm that they were aware.

Might be worth contacting someone like Age Action for some advice.

The DSS would be under the impression that they have made the process simpler for POAs

If there are views that this is not the case people should inform the DSS.

thedaddyman said:

I can't comment on the new method but the old method was very straightforward. I did it with my mother a couple of years ago, solicitor came out to the house, spoke to Mam on his own and was satisfied that she was of sound mind, and this was backed by a doctors letter. We put myself and my sister on the POA and he also wrote to our respective spouses and asked them to confirm that they were aware.

Might be worth contacting someone like Age Action for some advice.

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The tech-centric approach in the new system is inherently unsuitable for elderly users. Many of them need help negotiating the system. The act of enlisting that help from friends or family opens up significant risk of undue influence. Even if it is well-intentioned influence, even if it is objectively benign influence, it is still perilously close to undue influence if it in any way alters decisions that they might have made without that influence.

In short, it is an ethical and risk-management minefield for practitioners.

Many solicitors are unwilling to take on this level of business risk (particularly for a task which the Decision Support Service think should cost circa €100+VAT).

Apart from the web-centric approach being inherently unsuited to an elderly constituency, there is also the issue that the supposed efficiency gains may well be illusory.

First, it should be pointed out that the old method was not quite as straightforward as you might think (but still better than the new system).

Under the old system (and under the new), there are essentially two steps.

The first step is to execute an EPA (which is what you have described above). In many ways this was similar to making a will, with formal statutory requirements to be complied with ( albeit at a detailed and prescriptive level in excess of the statutory formalities for making a valid will). To do this properly, the legal fees would come in around €500 - €800 +VAT, in my opinion.

The second step is to register the EPA - which was (loosely) analogous to going through the process for a grant of probate while someone is still alive. Once registered, the appointed attorney has authority ( in much the same way as an executor) to manage the property of the person who appointed them. Under the old system, there was a fair bit of work to do in the registration phase (and even at €1500+VAT, solicitors were losing money on this, in my opinion).

What the Decision Support Service has tried to do is to simplify (with their misguided tech-centric system) but also to front-load much of the registration process, so that once you have executed an EPA, you have also registered it. The idea is there will be much less to do when you ultimately lose capacity (because much of the registration workload has been front-loaded into the execution phase).

As far as I am aware, before setting up this system they lacked good data as to how many EPAs that are executed will ultimately need to be registered.

If all EPAs are ultimately going to end up being registered and used, the new system is actually not all that terrible in principle (some tweaks to get advice to the client before starting the process, and to have legal input into that process would address a lot of the ethical issues). Certainly, it front-loads the cost and compliance burden. But if that burden is going to be incurred regardless, well it's just a lifetime cashflow issue. I suspect that this is part of the thinking which inspired the new system

However, let's say, only 10% of EPAs go on to be registered and relied upon. This means that under the new system the other 90% of users will have had a needless cost and compliance burden imposed upon them. Yes this is an exaggerated example to illustrate the problem.

I don't have the data to be able to give an accurate estimate as to whether the efficiency 'gains' outweigh the additional burden now imposed at the time of executing an EPA. I rather suspect that the DSS likewise don't have that data.

@MOB well written piece. Why not send it to DSS and see what they say?

WizardDr said:

@MOB well written piece. Why not send it to DSS and see what they say?

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I am sure somebody could do that - but I can't. I am an employer and by making this representation I would arguably be straying into lobbying, which is a regulated activity. Yes, I might fall within a permitted exception, but checking that out all takes time and work.

Of course, I could safely do so indirectly through my representative body (The Law Society) but I am afraid I don't have the mental bandwidth for that either.

Thanks

It looks a mess and I get that but I’m not sure what to do now.

@MOB - I think you do yourself a disservice (!) - I don't think a complaint could be lobbying but the Law Society should take it up.

The DSS may live on in their bubble if they are not told.

The Law Society is currently actively engaging with DSS in relation to the issues highlighted above. Likewise, the Dublin Solicitors Bar Association has been in active engagement with them in relation to the same issues.

This topic is receiving a lot of coverage in the Irish Times in the past week or so. https://www.irishtimes.com/your-mon...society-and-decision-support-service-dispute/

Anecdotally (based on a very informal poll carried out by an elderly colleague) the majority of solicitors have decided to avoid this work; those practitioners who are taking on EPA work are quoting fees in the range €1500-2500 +VAT.

WizardDr said:

@MOB - I think you do yourself a disservice (!) - I don't think a complaint could be lobbying but the Law Society should take it up.

The DSS may live on in their bubble if they are not told.

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Law Society sought input from practitioners in the past few weeks and fwiw, I gave some. There is no war between DSS and the legal profession, but there is certainly a frosty edge to the civility - and I see no prospect of a thawing.

If some solicitors are not taking on the work, and someone doesn’t have an EPA in place, who can normally make decisions for them if they become incapacitated- does it fall to next of kin or are they in some legal limbo? Unable to decide for themselves but no-one else appointed to act for them?

ginslia said:

If some solicitors are not taking on the work, and someone doesn’t have an EPA in place, who can normally make decisions for them if they become incapacitated- does it fall to next of kin or are they in some legal limbo? Unable to decide for themselves but no-one else appointed to act for them?

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The person can be made a Ward of Court - its generally more expensive

DannyBoyD said:

The person can be made a Ward of Court - its generally more expensive

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I thought the Ward of Court system was replaced by the 3 levels introduced by the DSS?

The process is updated (how successfully remains to be seen); but in essence, in my view, remains the same.

If an EPA is not appointed, the legal system takes over where a person does not have capacity.

I still call paper money 'pounds' on occasion

Conan said:

I thought the Ward of Court system was replaced by the 3 levels introduced by the DSS?

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Yes, we're in midst of trying to set up a DMR (decision making representative) for a family member with intellectual difficulties. It's been so difficult to even a find a solicitor to assist. I believe the Ward of Court is obsolete now, the new Capacity act is in it's place.
We're not alone but it is frustrating our attempts to set up the Fair Deal agreement for her.....I am haring of log jams in the system over it so I think it'll have to be simplified (hope!).