New online system for creating enduring powers of attorney ‘too complex’, say solicitors

A new online system aimed at ensuring legal protection for vulnerable people at risk of losing mental capacity is “too complex and off-putting” for many, including solicitors, a solicitors’ group has claimed.

However, the Decision Support Service (DSS) has defended its “digital first” system for creating enduring powers of attorney (EPAs), saying there has been an “encouraging level of engagement” with it since it came into operation in late April.

Concerns about the system have been raised by the Law Society of Ireland, the Dublin Solicitors Bar Association (DSBA) and by Solicitors’ Growth (SG), which provides support services for solicitors.

A key concern is the system’s “digital first” focus which, according to solicitor Flor McCarthy of SG, “discards a good paper-based system without a workaround alternative and makes EPAs harder for those who need them most”.

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“Without adjustments, the system may deter the creation of EPAs, leaving vulnerable adults at risk,” he said.

According to a survey for SG, only 15 per cent of solicitors feel prepared to continue to provide EPA-related services under the present DSS system. 42 per cent declined outright and 43 per cent were undecided.

Most – 72 per cent – said they would participate if a paper-based system was available, and 81 per cent said they would participate if an agent portal was provided to facilitate direct access by solicitors to the system.

In response to the concerns, the DSS, based in the Mental Health Commission, said advance planning is “a key part” of the Assisted Decision-Making (Capacity) Act 2015, which was fully commenced in April.

[ Enduring power of attorney. What you need to know about new legislation ]

EPAs have been in place here since 1996, with “relatively low take-up”, it noted. According to a recent survey of 1,000 adults by Safeguarding Ireland, just six per cent of adults here reported having an EPA.

“The DSS has been designed as a person-facing service with a digital-first, but not digital-only approach,” said DSS director Áine Flynn. Based on expert advice and the experience of other jurisdictions, the clear recommendation was to move away from paper-based and manual processes “shown to be inefficient, error-prone and unsustainable”.

The DSS online customer portal system allows members of the public to create secure accounts, involving “robust” ID verification, and complete applications to create and register decision-support arrangements, including EPAs, she said.

Since the launch of the DSS seven weeks ago, its registration team has reported more than 500 fully verified accounts and 150 active applications to create EPAs from members of the public, she said. “This is a very encouraging level of engagement with the online portal which we are confident will continue.”

[ Just 6% of adults have taken out enduring powers of attorney ]

To ensure accessibility, the DSS facilitates alternative means of verifying identity to allow it to create an account for a person and, on request, supply forms prefilled with the donor’s information for completion, she said. “These workaround processes necessarily take longer.”

Any donor may instruct a solicitor to make an EPA and a solicitor may send a template letter of authority to the DSS and be recorded as an authorised contact, she said.

The DSS had held recent “very constructive” meetings with the Law Society and DSBA about the EPA process and has provided the society with an explanatory note to be sent to practitioners, she said.

The DSS “fully appreciates new systems and new processes can take time to bed in” and is “more than happy to continue this engagement”.

The DSS may be contacted by phone and resources are available on its website, decisionsupportservice.ie including “explainer” videos, and step-by-step guidance for the completion of forms online.