I am all in favour of creating Enduring Powers of Attorney (EPA) because I believe that it remains the best option if you want to put your affairs in order and keep them that way. For a general overview of the options, please see here.
If you want to create an Enduring Power of Attorney, I have set out first the steps to the taken and later on give more information as to why.
Steps to be Taken
- Speak to your solicitor about whether an EPA is the right option for you and the various choices which you will have to make when you go down that route.
- If you are comfortable with technology, follow the steps on the Decision Support Service (DSS) website or have somebody who is comfortable with technology do this in your presence on your behalf.
- If you are not comfortable with technology then you can either download a paper version of the EPA, get someone else to do it for you or have your solicitor do so on your behalf.
More Information on these steps
You can now create your own EPA through the Decision Support Service (DSS) website but you should first seek legal advice from your solicitor. The reason why you should seek legal advice is that your solicitor will have to provide a Certificate to the effect that you understand the implications of creating the EPA, that you may amend or revoke it in certain circumstances and that there is no reason to believe that the EPA is being created as a result of fraud, coercion or undue pressure. This will require an in depth consultation with your solicitor and your solicitor will have to keep very detailed notes on this consultation. Why? Because the DSS may, as part of an investigation write to a legal practitioner requesting relevant records or information and / or summon the legal practitioner as a witness. Failing to comply with the DSS requirements or hindering or obstructing the DSS staff in this context may render the legal practitioner guilty of an offence and subject to a fine. It is a mercy that the DSS is not threatening a prison sentence as well as or instead of a fine, but the obligations visited on solicitors by this requirement make it imperative that you see your solicitor first before tackling the DSS website.
After you have made sure that your solicitor is fully briefed to issue the Certificate, there may still be obstacles in your way. Digital First is the policy of the DSS and I am all in favour of this as well, but not everybody can navigate their online system. If you prefer to have a solicitor help you in the creation of the EPA as well as advising on it, Digital First would still be a great idea if the DSS allowed solicitors to create their, but they do not. Instead, the process is rendered unwieldy by the imposition of a great many paper forms.
Whether or not you create the EPA online, complete the paper form yourself or have your solicitor do it on your instructions, there are a few things you should know before you start.
- You will need a verified MyGovID. This is supposed to be a straightforward process but in my experience it is not.
- You will have to obtain the PPSN’s of your chosen Attorneys or substitute Attorneys. That could be challenging if they have never worked in Ireland
- You will have to sign the EPA in the presence of two witnesses and of the person or persons you appoint as Attorney. This is not straightforward either. That is potentially five or six people in the same room at the same time. People cannot always drop everything at the same time to be in the same room at once, even if they are all in the same town or village. And what if your chosen Attorney is abroad? As far as the DSS is concerned, they will just have to come back for the occasion.
- You have to notify your spouse that you have created the EPA unless your spouse is also your Attorney. There is an exception if you are divorced or legally separated. Not a problem for most people, but what if you are estranged from your spouse without any formalities and, even worse, you do not know where in the world your spouse is?
- If you have children, you will have to notify all of them that you have created the EPA. This may not suit you at all if you are creating the EPA specifically to exclude one or more of your children from management of your affairs. You may not even know the whereabouts of one or more of your children, but you still have to notify them. At least in the case of notifying spouses there is an exception for cases where the estrangement has been formalised, but there is no way of formalising an estrangement from your child.
- If, despite all this, you manage to complete the process, details of your EPA will be on a searchable register with the DSS. Only people with a legitimate interest can search the register, but it is the DSS who get to decide who has a legitimate interest. You don’t have a say in it at all.
If all this has put you off the idea of creating an EPA, I can hardly blame you. If you want help creating an EPA you can email bradleys@iol.ie, click the call button, phone 014545138 or use the Contact Form.