The short answer
An Enduring Power of Attorney (EPA) lets you choose someone to make specified decisions for you if you later lose capacity to make those decisions yourself. Under the current Irish system, an EPA is made and registered through the Decision Support Service (DSS). It is separate from a will and separate from an Advance Healthcare Directive.
If you are thinking about a will because you want to make life easier for your family, an EPA answers a different but equally practical question: what happens if I am alive but can no longer make certain decisions for myself?
The current EPA regime is very different from the older system many Irish families may remember. Older articles describing registration only after incapacity, or treating an EPA as purely a financial document, should not be relied on for a new EPA.
What can an EPA cover?
An EPA can give your chosen attorney authority over decisions you specify concerning:
- property and affairs, such as financial or property-related matters; and/or
- personal welfare, depending on the decisions you include.
You decide the scope when the EPA is made. The point is not to hand someone unlimited power. It is to specify what decisions they may make if the EPA later takes effect.
What can an EPA not do?
An EPA is not a substitute for either of these documents:
- A will, which deals with your estate after death.
- An Advance Healthcare Directive (AHD), which deals with future healthcare and treatment wishes.
The DSS specifically states that an EPA cannot include consent to or refusal of treatment. Treatment decisions belong in the AHD framework.
Who is the attorney?
The attorney is the person you choose to make the decisions covered by the EPA if the required conditions are later met. Choose someone because you trust their judgement, reliability and ability to act in your interests, not simply because they are the eldest child or nearest relative.
Before naming someone, talk to them. An EPA works best when the attorney understands what you are asking them to do and is comfortable accepting the role.
How do you make an EPA in Ireland now?
The current process is supervised by the Decision Support Service. In broad terms:
- You decide what decisions the EPA should cover and whom you want to appoint.
- You complete the EPA process through the DSS system.
- You and the attorney or attorneys sign in accordance with the DSS requirements, in the presence of the required witnesses.
- A legal practitioner meets you and provides the required statement.
- A doctor or other specified healthcare professional assesses capacity and provides the required statement.
- The required notice is given to the people who must be notified.
- The EPA is submitted to the DSS for registration within the required timeframe.
The DSS states that the donor and attorney or attorneys sign together, in the same place and at the same time, before the same two witnesses. At least one witness must not be an immediate family member, and the witnesses are subject to additional restrictions.
When must the EPA be registered?
Under the current system, the EPA is registered with the Decision Support Service after it is made. The DSS states that it must be submitted for registration within three months of making the EPA.
That is a major difference from the old model, where people often thought of registration as something that happened only after capacity was lost.
When does the attorney actually start making decisions?
Registration does not mean the attorney immediately takes over your affairs. The EPA is intended for the future situation specified in the arrangement.
If you later lose capacity to make one or more of the relevant decisions, the attorney must follow the DSS notification process before the EPA can be used. The DSS requires evidence including capacity statements from two doctors or other eligible healthcare professionals.
The EPA takes effect for those purposes after the DSS accepts the notification.
A simple example
EPA vs will vs Advance Healthcare Directive
| Document | Main purpose | When it matters |
|---|---|---|
| Will | Estate, executors, beneficiaries and related wishes | After death |
| EPA | Specified personal welfare and/or property and affairs decisions | If capacity is later lost for those decisions |
| AHD | Future healthcare and treatment wishes/refusals | When you lack capacity for the healthcare decision |
Do you need an EPA if you are married?
Marriage does not make an EPA unnecessary. A spouse may be the obvious person you would want to help, but important financial, property or welfare decisions do not automatically become legally straightforward merely because you are married.
The value of the EPA is that you make a formal, registered decision-support arrangement while you have capacity.
What should you do first?
You do not have to create these documents in a particular order. A practical planning exercise is simply to ask three separate questions:
- Who should receive and administer my estate if I die?
- Who should make specified decisions if I lose capacity?
- What healthcare treatment wishes or refusals do I want recorded?
The answers point respectively towards a will, an EPA and an Advance Healthcare Directive.
Need to sort the will part?
MakeAWILL.ie provides downloadable will templates for straightforward family situations. Choose the will that fits your circumstances. The EPA itself should be made through the Decision Support Service process described above.
Official DSS guidance
- Decision Support Service: making an EPA
- Decision Support Service: decisions that can be included
- Decision Support Service: notification when capacity changes
Important: This article provides general information about the current Irish EPA system. Use the current Decision Support Service guidance when making or activating an EPA and obtain the professional inputs required by that process.
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