As you are aware, the Assisted Decision Making (Capacity) Act 2015 [‘the Act’] commenced on 26th April 2023.
As well as the changes to Wardship, the new Act also imposes an additional obligation on Enduring Power of Attorney (‘EPA’) Donors to register their EPA document at the time it is created. Members will be aware that prior to the commencement of the Act, the obligation to register came after the Donor had lost capacity, in order to enrol the EPA.
Many of you have contacted me and our Mental Health and Capacity Committee over the past few days to alert the DSBA to the practical issues and concerns which have arisen with the creation of EPAs since 26th April 2023. These include:
- Necessity for the Donor to register directly with and create account with Decision Support Service (‘DSS’);
- Requirement for the Donor to use the online prescribed EPA form only;
- Obligation on Donor to prove their identity through use of Public Services Card and then creation of MyGovID;
- Compelling the use of PSC and MyGovID;
- Work around for the identity is through the use of paper forms on an exceptional basis; these forms can only be provided to the Donor directly;
- EPA Forms only available to the Donor directly and cannot be drafted by their solicitor;
- Exclusion of the solicitor from oversight of the EPA process and removal of the solicitor from any advisory role in connection with the preparation of the EPA (compared to previous system) – our limited involvement comes at the end, after the EPA is created to certify whether the Donor understands the contents of the EPA as presented by them to the solicitor and enters into it freely.
- Obligation on solicitor to certify that they have no reason to believe that the Donor is executing the instrument as a result of fraud, coercion or undue pressure without oversight of the entire procedure.
- The attention of solicitors is particularly drawn to Section 96 of the Act ‘Investigations by Director’ which provides that any person can be summonsed to attend as witness before the Director of DSS; be examined on oath and to produce to the Director any document in the power or control of the witness;
Furthermore, in the event that the person fails to comply with a requirement; hinders or obstructs the investigation he/she shall be guilty of an offence.
DSBA Council met on 17th May 2023 to consider the matter and I have today written to the Director of the DSS to request an urgent meeting in order to bring our concerns to her immediate attention. I am also raising this as an issue with other relevant stakeholders.
I will be in touch in the coming days with an update.