A row between the Law Society and the recently established Decision Support Service threatens to undermine new structures put in place to protect vulnerable and older people.
The Decision Support Service (DSS), which began operations last year, has been given responsibility in law for the drawing up of enduring powers of attorney, advance healthcare directives and various decision-support arrangements, including for people who formerly would have been wards of court.
People using the system must first register with the service and have their identity verified. They can then use one or more of the services it offers and supervises. A spokeswoman for the DSS stressed that it was “a person-centred service designed for use by the ordinary person”.
But the row centres on enduring powers of attorney, which the DSS says is the area in which it has been the busiest since it started operations.
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Enduring power of attorney (EPA) allows people to set down in a legally enforceable document who should make decisions on their behalf in areas such as their personal care, their living arrangements and their finances if they are no longer able to do so in the future.
The DSS says that by the end of last month, more than 3,000 EPA applications had at least got to the point where necessary medical and legal certification is required to confirm that they understand the process and are fit to make such a decision.
However, figures given by Anne Rabbitte, Minister of State at the Department of Children, Equality, Disability, Integration and Youth, to Sinn Féin TD Pa Daly just over a month earlier said that just 167 EPAs had been completed by April 17th.
People using the system say they are having problems getting a solicitor to sign a legal practitioner’s form saying the person looking to set up the EPA understands what it entails and what the potential consequences of doing so are, and that they are not under any duress or other pressure to do so.
The Law Society has put out a guidance note to its members expressing concerns that the DSS process does not allow solicitors sufficient insight to be able to sign with confidence the legal practitioner’s statement, especially on the issue of whether the client is operating under duress.
“Ultimately, the Law Society believes the implementation of the new system is limiting the ability of many people to express their preferences through the creation of an EPA,” it said in a statement.
It says the DSS’s “narrow and restrictive ‘digital first’ approach does not adequately take into account the digital proficiency of some elderly or vulnerable people, or those who are already likely to be disadvantaged”.
The DSS says it does offer an alternative paper-based manual system for people uncomfortable with an online approach, saying its “intention is to be available to support those who wish to engage with the DSS”.
However, in response to a series of detailed queries, the DSS has not, to date, been able to clarify how such a paper-based system operates and what documents are required.
Both sides say they recognise the importance of each other to the system and that they have engaged actively with each other but, in statements released to The Irish Times, they appear to be addressing unrelated concerns.
“We have offered to contribute to training and the development of guidance for practitioners and this offer stands,” the DSS said. “We recognise that this is a new service and system.”
However, the Law Society says it has fundamental concerns about how the DSS operates.
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