The new regime allowing older people to set down how they want to be cared for if they can no longer make decisions for themselves is simpler, broader and more empowering, according to a long-time advocate for vulnerable people.
Patricia Rickard-Clarke was responding to reports that a dispute between the Law Society and the Decision Support Service, which was set up to oversee and supervise the new regime, is preventing people from completing applications for enduring power of attorney.
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 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.
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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”.
Ms Rickard-Clarke, a solicitor who is vice-chairwoman of Sage, the national advocacy service for older people, and also chairwoman of Safeguarding Ireland, which works to protect vulnerable adults from individuals, organisation or institutions, said the new regime put in place by the Assisted Decision-Making (Capacity) Act 2015 is a big improvement on the previous regime.
A member of the HSE steering group behind implementing that legislation, she said change was necessary to address a growing issue with elder abuse.
Under the previous regime, she said, there was no provision for anyone concerned with potential abuse of an older or vulnerable person to complain without going to the High Court, which was both stressful for all those involved and very expensive.
Under the new regime, which only came into operation a year ago, anyone interacting with the vulnerable person can approach the Decision Support Service if they have cause for concern.
And the Decision Support Service is charged with active oversight of the rules, including requiring annual reports from attorneys on issues including how any money has been spent.
Another advantage of the new system is that the enduring power of attorney is registered immediately – while the person who drew it up still has the capacity to address any difficulties that may arise, Ms Rickard-Clarke said. That is in contrast to the old “1996 Act” regime, whereby enduring powers of attorney were held by a solicitor and only registered (with the High Court) once the person had lost the capacity to care for themselves.
“If difficulties with the arrangement were only discovered at that stage, what do you do about it?” she said. The power could well be voided and, without the mental capacity to be allowed put another in place, the person’s wishes might not be implemented.
Ms Rickard-Clarke also defended the “digital-first” approach of the new service, arguing that there was a need for an online register for such arrangements rather than a system where no one knew what documents rested in which solicitors files, or not.
It would also assist with respecting a person’s confidentiality, she said, as, previously, “copies of the enduring power of attorney were handed over to everyone”, such as banks, utilities and others when the people now taking care of the vulnerable person – the attorneys – needed to get control of accounts.
She was a member of the HSE’s National Assisted Decision-Making (Capacity) Act Steering Group preparing for the implementation of the Assisted Decision-Making (Capacity) Act 2015 and a member of the National Disability Authority’s Expert Group developing the non-health care codes of practice for the 2015 Act and is a member of Department of Health’s Protection of Liberty Safeguards Expert Advisory Group.
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