• Enduring Powers of Attorney

Updates on Enduring Powers of Attorney since the introduction of the Assisted Decision Making (Capacity) Act 2015 which commenced on the 26th of April 2023.

The Decision Support Service was established under the Assisted Decision-Making Capacity Act 2015 and Enduring Powers of Attorney now come under this legislation.

Enduring Powers of Attorney must now be registered with the Decision Support Service. An account must be set up with the Decision Support Service (DSS). Your doctor must sign a Statement of Capacity form confirming that you have the capacity to enter into an Enduring Power of Attorney.

Your Solicitor must sign a legal practitioner’s statement confirming that you understand what an Enduring Power of Attorney is and that they have interviewed and met with you in advance of creating the Enduring Power of Attorney.

The Enduring Power of Attorney must be registered with the DSS. They charge €30.00 for registering the Enduring Power of Attorney. The Enduring Power of Attorney, legal practitioners’ statement and capacity must all be uploaded to the DSS and the registration fee of €30.00 is paid with your application and the DSS retain a register of Enduring Powers of Attorney.

As under the old system, the Enduring Power of Attorney can only be activated or as the DSS calls it “notified”, when the Doner lacks capacity to make decisions and a doctor, or another healthcare professional makes a statement that you lack capacity to make one or more of the decisions contained in the Enduring Power of Attorney.

 

Decision Support Arrangements

Decision Support Arrangements are now legally recognised arrangements for people who need support to make decisions.

The Government has set up the Decision Support Service under the Assisted Decision-Making Capacity Act (2015) which came into operation on the 23rd of April 2023. This legislation abolished the law on Wards of Court and Wardship proceedings and Care Representative Applications and replaced it with the Assisted Decision-Making Capacity Act 2015. The guiding principles of the Act are that it is presumed every person has the capacity to make decisions about their life and to support people as much as possible in making their own decisions and to only take action where it is really necessary. Any action taken must give effect to the person’s wishes and beliefs and consider the views of other people who are close to the person.

There are five different Decision Support Arrangements for people who have challenges with their capacity and who may need support to make certain decisions.

There are three types of support arrangements for people who currently or may shortly face challenges making certain decisions. They are as follows:

  1. Decision Making Assistance Agreement
  2. Co-decision Making Agreement
  3. Decision Making Representation Order

There are two types of arrangement for people who wish to plan ahead for a time in the future when they might lose capacity as follows;

  1. Advanced Healthcare Directive
  2. Enduring Power of Attorney

 

These are summarized as follows:

  1. Decision Making Assistance Agreement

If you require support to make decisions on your own, you make a Decision-Making Assistance Agreement. This Agreement lets you appoint someone you know and trust as a Decision-Making Assistant. Your Decision-Making Assistant will help you get information and explain it to you. They can also help to let other people know what your decision is.

  1. Co-decision Making Agreement

If you are unable to make certain decisions on your own you can appoint a person you trust as a Co-decision Maker under a Co-decision Making Agreement. This Agreement lets you write down decisions you need help with and give someone the legal authority to make those decisions jointly with you. The decisions can be about your personal welfare or your property and money matters.

  1. Decision Making Representation Order

If you are unable to make certain decisions even with someone else’s support, the Court may appoint a Decision-Making Representative to you. The Decision-Making representative is appointed by the Court to make decisions on your behalf taking into account your wishes. If possible, the Court will appoint someone you know and trust as your Decision-Making Representative.  If there is no one willing or able to act on your behalf, the Court may appoint someone from their panel of trained experts.

  1. Advance Healthcare Directives

If you are planning ahead, you can make an advanced Healthcare Directive. This arrangement lets you write down your wishes about the Healthcare and medical treatment decisions in case you are unable to make those decisions at some time in the future. You can appoint someone you know and trust as your designated Healthcare Representative.

  1. Enduring Power of Attorney

If you do not currently need support but would like to plan ahead, you can make an Enduring Power of Attorney. This arrangement lets you appoint someone you trust as your Attorney (Please see information on Enduring Powers of Attorney as set out above).

 

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