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

Young and older adults here have been urged to avail of a new landmark law to ensure the future management of their healthcare and finances is in line with their own wishes.

Speaking as the Assisted Decision-Making Capacity Act comes into effect on Wednesday, Patricia Rickard-Clarke of Sage Advocacy, which advocates for older people, vulnerable adults and healthcare patients in certain situations, called on adults to take out enduring powers of attorney (EPA) and make advanced healthcare directives (AHD) while they still have capacity to do so.

Just six per cent of Irish people have executed EPAs and just four per cent have made AHDs, compared to some 30 per cent in England, she said. “It is all about pre-planning. Many people think they don’t have to do this until they are old or sick but they should be doing it now.”

The 2015 Act, to become operational on Wednesday, provides for the dismantling of the wards of court system, introduces a new Decision Support Service (DSS), expands the scope of EPAs to include healthcare decisions and introduces AHDs into Irish law.

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An AHD can be prepared without going to a solicitor or doctor and may be regularly updated to allow for changes in health circumstances or diagnosis, she noted. While it would be necessary to get advice from a solicitor for making an EPA, legal aid was being made available for this, she added.

Senior counsel David Leahy, a specialist on capacity legislation, said the Powers of Attorney Act 1996 provided for making EPAs relating solely to a donor’s property and affairs. The 2015 Act broadened the scope of EPAs to include healthcare decisions and provided for EPAs to be supervised by the DSS, he outlined.

Under the Act, the enduring power is created via a written instrument which is registered by the attorney with the director of the DSS. The power becomes operational when the donor lacks capacity in relation to one or more than one relevant decision and the instrument has been registered.

An EPA cannot cover decisions subject of an AHD. The Act allows anyone aged over 18 to make an AHD, which will only come into effect where the person has lost capacity.

EPAs and AHDs must be made while the relevant person has capacity and Mr Leahy said he would urge all adults to make them.

“I accept that people do not want to think about loss of capacity but all adults should really consider this. People should make EPAs and healthcare directives at a younger age than they might be contemplating and think long and hard about their wishes, such as whether they wish to be resuscitated or receive certain medical treatment.”

Loss of, or limited capacity, could happen to anyone, not just from dementia but in other ways, such as an incident resulting in an acquired brain injury, he said.

[ Why do so many Irish adults not opt for peace of mind of an enduring power of attorney? ]

“That can leave others with awful decisions to make, such as whether a person should be resuscitated or not. When an EPA or an advanced healthcare directive exists, it can greatly minimise distress or conflict,” he said.

When making an EPA, the donor can give the attorney wide or limited powers, he explained. An EPA can permit an attorney to act alone or jointly with another person in relation some or all matters affecting the donor. Decisions such as whether the donor wants to avail of the Fair Deal scheme or receive home care as long as possible can be covered by an EPA.

In relation to financial management, Mr Leahy said EPAs provide for “a great deal of flexibility”. A donor may sanction the attorney to manage all their financial affairs or the donor may pursue other alternatives, such as setting up a financial trust.

Ms Rickard-Clarke said a lot of resources were spent here trying to ascertain the will and preferences of adults who have lost capacity. When there was no EPA or AHD in place, that could mean going to court which was expensive, she said.

There was a substantial level of financial abuse here and, when capacity issues arose, having an EPA would provide protection, whatever level of financial assets a person had, she said. Under EPAs, a business person could, for example, stipulate who should continue running their business and a person with an intellectual disability could state who will collect their pension.

Adults with capacity should take time now to consider who they trusted and have detailed conversations about their wishes, she said. It was “very important” to have that conversation before a crisis emerged and a healthcare professional was left deciding what should be done.