FAQ Enduring Power of Attorney

This is not a term in the 2015 Act. The Decision Support Service uses the term ‘decision-supporter’ to refer to a person who has been appointed as a:

  • decision-making assistant under a decision-making assistance agreement
  • co-decision-maker under a co-decision-making agreement
  • decision-making representative under a decision-making representation order
  • attorney under an enduring power of attorney
  • designated healthcare representative under an advance healthcare directive.

The type of support they can provide depends on the decision support arrangement in place.

Ideally, a decision supporter will be a family member or trusted friend.

At the upper tier of support, the person may not have someone who is available and suitable to act as a decision-making representative. The Decision Support Service will recruit and maintain a panel of people who are suitable to act as decision-making representatives. The court can ask us to nominate two decision-making representatives from this panel and the court can choose to appoint one of them.

You can find out more about decision supporters under each agreement by clicking on the link to our Services page.

Yes, you can register a decision support arrangement with us by clicking on our link via our MyDSS portal. You can access our portal through the portal link on the Decision Support Service website in the top right-hand corner of the screen. You can find out more by clicking on the link on our Useful Links page.

If you have already made an Enduring Power of Attorney (under the Powers of Attorney Act 1996) then you can keep that arrangement and it will continue to be valid. The only change is that the Decision Support Service will be able to investigate complaints about an attorney under the 1996 Act.

If you wish to make an enduring power of attorney under the 2015 Act, you can do so. You can find out more by clicking on the link on our webpage Enduring Power of Attorney section.

You do not need a lawyer to make a decision support arrangement. Detailed information on how to make a decision support arrangement is available on the Decision Support Service website for you to follow. However, if you wish to make an Enduring Power of Attorney you will need a statement from a lawyer that you understand the arrangement.

It is the prerogative of any donor to instruct a solicitor in respect of the creation and registration of an enduring power of attorney (EPA) if the donor wishes to do so. In our guidance, we state that a donor should consider doing so particularly when complex matters are involved.

As part of the content of an instrument to create an EPA, section 60(1)(b) requires a statement from a legal practitioner. Legal practitioner is defined in section 2 of the 2015 Act to mean a practising barrister or practising solicitor.

The Decision Support Service (DSS) provides a statement unique to the donor during the EPA application process for this purpose.

A capacity assessment looks at a person’s ability to make a decision for themselves. The assessment used is called a ‘Functional Test’ for capacity. This means the assessment is about a specific decision that needs to be made at a specific time. You may not make a blanket assessment that a person has no capacity.

Applying the functional test, a person can be said to lack capacity to make a decision if they are unable to do one of the following:

  • Understand information relevant to the decision,
  • Retain that information long enough to make a voluntary choice,
  • Use or weigh up that information as part of the process of making the decision,
  • Communicate their decision in whatever way they communicate (not only verbally).

The DSS has adopted a ‘digital first’ approach in line with government policy, based on advice and having regard to the experience of Public Guardians in other jurisdictions.

International experience has shown that paper-based registration processes tend to be inefficient, error prone, vulnerable to data breach and fundamentally unsustainable.

The DSS has spoken publicly of its establishment on a digital platform for several years.

Recent research by Safeguarding Ireland has shown that only 6% of adults have an EPA. It will be important to promote uptake among greater numbers and younger adults and our systems and the DSS business model must be equipped to manage increased volumes efficiently.

Call for more people to make an Enduring Power of Attorney - Safeguarding Ireland 

If a donor is not able to complete the relevant steps on the online portal, even with support, which may of course include professional support throughout, they may be reassured that the DSS will facilitate an alternative 5-step process. 

This commences with an initial engagement to verify the identity of the donor and their attorney(s) to substitute the ID authentication supplied by the online system.

The nature of an alternative non-digital process necessarily involves longer timeframes and additional steps to ensure we meet our continued commitment to data protection and reduce the risk of error. The data provided throughout the paper process has to be input by the DSS into the portal at every stage to replicate what can be done in real time by engaging directly with the system.

Under the new 2015 Act, everyone is presumed to have capacity at all times. The first step is to support people to make their own decisions. In some circumstances there may be a reason to question a person’s capacity to make a certain decision. The person who requires the decision to be made will often be the best person to do the capacity assessment. This could be, for example, a lawyer, doctor, or a person providing financial services.

There are also limited circumstances where the capacity assessment has to be undertaken by healthcare professionals. This is during the process of registering a co-decision-making agreement or enduring power of attorney. Formal statements from healthcare professionals are required to register these arrangements.

There will be fees to register a co-decision-making agreement and an enduring power of attorney. These fees have been set by regulation. You can view a full list of all our fees by clicking on the link fees in the resources section of our website.

Some people may not have to pay a fee. This will depend on your household income and any dependents you have. You can view information on the criteria for obtaining a fee waiver as well as the process for applying in our resources section by clicking on the link resources section of our website.

There are also costs related to making an application to court to make a decision-making representation order. Some people may be able to get legal aid to help with this, this could include legal representation. For more information on this, contact the legal aid board.

We have the authority to investigate complaints about decision-making arrangements and decision supporters. You will find our complaints form on the forms section of the website. You can email or post this form to us.

You can also contact the complaints team on 01 211 9750 or email complaints@decisionsupportservice.ie.