Seán Fleming (Laois-Offaly, Fianna Fail)
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1469.To ask the Minister for Children, Equality, Disability, Integration and Youth if a response will issue to correspondence (details supplied); and if he will make a statement on the matter.[35161/24]

Anne Rabbitte (Galway East, Fianna Fail)
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I have personally, along with officials in my Department, met with and corresponded extensively with both the Decision Support Service (DSS) and the Law Society of Ireland in relation to Enduring Powers of Attorney (EPAs) and associated issues. From these engagements, it is clear that both organisations are committed to the optimal operation of the Assisted Decision-Making (Capacity) Act 2015, and that all parties hold the same priorities in ensuring that people can get the right support as early, as accessibly, and as affordably as possible.

I am also aware that there has been ongoing bilateral engagement between the DSS and the Law Society since the commencement of the Act, in particular in respect of the EPA process.

In correspondence to the Law Society of 13 June, I acknowledged that manual processing times for EPAs must be reduced where possible in order to free up capacity and resources within the DSS. The DSS has also acknowledged that processing times for EPAs have been too long and have not met the DSS’s own targets. A major contributing factor to this has been the high level of adoption of manual processes by applicants, in particular persons being represented by professionals. The manual process requires the DSS to engage in resource intensive manual processing and is time-consuming, involving additional steps and an exchange of correspondence.

I am pleased to report that the recent introduction by the DSS of a new Accessibility Policy has seen a 40% uplift in digitally submitted applications since 9 July and a very limited demand for manual applications. This corrective action - together with the establishment of a dedicated team of 10 staff to address the manual applications backlog - has already improved processing times and will further improve these timelines so that submitted applications complete review and are registered as quickly as possible. These changes have taken place in line with the Government's digital first, but not digital only, policy. Individuals who require assistance or manual application are being, and will continue to be, assisted and accommodated and are advised to directly contact the DSS.

The new accessibility policy developed by the DSS, which includes an enhanced helpdesk service, ensures that individuals who require additional assistance in completing an online EPA application are supported in doing so. It also enables the DSS to ensure that the small cohort of individuals who are unable, for whatever reason, to utilize the online portal, are facilitated in making an EPA application manually. I am satisfied that this enhanced helpdesk service, alongside the helpful instructional videos and other guidance material provided on the DSS website, will assist all users of the system, including practitioners, to access any additional supports required. The Law Society has acknowledged that there is no prohibition in the 2015 Act or in DSS processes on the practitioner assisting clients in navigating the DSS portal for the creation of EPAs.

It is important to ensure that there is clarity and understanding when comparing the volume of EPAs activated annually under the Powers of Attorney Act, 1996 and those activated, through the DSS, under the 2015 Act. Anactivated/notified EPA is one in respect of which the donor has, unfortunately, already lost capacity in the period of time since the new system came into force in April 2023 and since the EPA was made and registered with the DSS. Ten such EPAs have been activated with the DSS. Comparing this number to the 1,245 Notices of Intention to Register an EPA created under the 1996 Act that were resolved by the High Court in 2022, is not a like comparison and could be misleading. Those 1,245 1996 Act EPAs could have been made at any time since commencement of the 1996 Act. In other words, it is not appropriate to compare the pipeline of EPAs under the new legislation to the pipeline of EPAs under the 1996 Act due to the difference in operational time and as there will usually be a gap of potentially a number of years between the making of an EPA and the advent of capacity loss when it then comes into force.

It would therefore be more instructive to look at the early lifetime of the 1996 Act. In 2000, four and half years after commencement of the 1996 Act, 63 EPAs were registered (or activated) that year. In fact, I am advised that the average time between creation of an EPA under the 1996 Act and subsequent application for registration following the advent of capacity loss is approximately 4 years.

I have committed to the Law Society’s broader issues being examined as part of the coming statutory review of the operation of the Act, which will look at more systemic reforms after a longer period of operation. My officials have begun preliminary scoping work in this regard and the views of the legal profession will be a vitally important aspect of the coming review, just as the input of the profession was extremely valuable in developing the 2015 and 2022 Acts.

In comparing the new and old system for EPAs it should be recalled that the new two-stage system is closer to international best practice than the older system, has superior safeguards, can avoid more costly legal processes and related High Court fees, and allows for ambiguities or errors in an EPA to be addressed when the donor still has capacity to clarify their wishes.

Along with the DSS, I encourage all adults to think about advance planning. This is why the Assisted Decision-Making (Capacity) Act 2015 Act is described as ‘an Act for everyone’. Anyone requiring assistance in relation to making or assisting a donor to make an EPA is welcome to contact the DSS by phone or email and its team will be pleased to help.