New EPA Adminstrative

Register of Enduring Powers

The Director shall establish and maintain a register (of instruments creating an enduring power attorney that have been registered by him or her.

The Register shall be in such form as the Director considers appropriate, but shall specify which instruments are, and which instruments are not, the subject of a notification that has been accepted by the Director.

The Director shall make such details of the Register as he or she shall specify available for inspection by—

• a body or class of persons prescribed by regulations made for this purpose, and
• any person who satisfies the Director that he or she has a legitimate interest in inspecting those details of the Register].

The Director may issue an authenticated copy of an instrument creating an enduring power of attorney that is the subject of a notification that has been accepted by the Director on the Register on payment of the prescribed fee to the above classes of person.

An authenticated copy of an instrument or part thereof, and, where applicable, any variations to the instrument or part, that is issued by the Director and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the instrument or part thereof, and where applicable, any variations to that instrument or part, as at the date and time indicated on the stamp.

The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy from him or her.

Applications to Court

Where the Director makes an application to the court for a determination on whether the instrument creating an enduring power of attorney should be registered, the court may, notwithstanding that the enduring power of attorney or the instrument creating it does not comply with the statutory requirements, or the application to register the instrument was not in accordance with the Act register the instrument where it is satisfied that—

• the donor intended the power to be effective during any period when the donor lacks capacity,
• fraud, coercion or undue pressure was not used to induce the donor to appoint an attorney,
• the attorney is suitable) to be the donor’s attorney, and
• it is desirable in the interests of justice to register the enduring power.

In determining whether an attorney is suitable the court, in addition to any other matters which it considers relevant shall have regard to—

• the relationship and degree of connection between the donor and the attorney,
• the degree of involvement which will be required on the part of the attorney in the care of the donor,
• the willingness of the attorney to carry out his or her functions under the enduring power, and
• any conflict of interest which may arise.

Where an instrument creating an enduring power of attorney has been the subject of a notification that has been accepted by the Director, the court may, whether on application by the donor, the attorney, the Director or an interested party—

• determine any question as to the meaning or effect of the power,
• give directions with respect to— a relevant decision relating to the personal welfare of the donor made or about to be made by the attorney, the management or disposal by the attorney of the property and affairs of the donor, and the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision of the enduring power, including directions for the repayment of excessive, or the payment of additional, remuneration,  and
• consent to a resignation by the attorney of his or her role as attorney under the enduring power of attorney.

Where the court gives a determination), a direction or a consent, it shall cause the Director to be notified of such direction or consent and the Director shall monitor the giving of effect by the attorney to such direction or consent as the case may be.

Removal of Instrument from the Register

The Director shall remove from the Register an instrument creating an enduring power of attorney where—

• there has been a revocation], or
• the attorney appointed under the instrument becomes disqualified, dies, resigns from his or her role as attorney or is unable to act].

In the circumstances described – where there is at least one attorney remaining due to—

• the donor having appointed more than one attorney under an enduring power of attorney, or
• the donor having specified a person to act as attorney for him or her in the event that the attorney on whom the authority is conferred is disqualified, dies, resigns from his or her role as attorney or is unable to act,

the Director shall not remove the instrument from the Register, but shall note on the Register in connection with the power concerned the disqualification, death, resignation or inability to act, as the case may be.]

Regulations

The Minister may make regulations for the purpose of giving the Act full effect. The  Minister shall, having regard to the requirements of the Act, prescribe by regulations the following matters:

• the class of healthcare professionals
• the bodies or classes of persons who may inspect the Register and receive an authenticated copy of an enduring power of attorney;

Regulations may prescribe the fees to be paid in connection with the operation of the Act  , including in connection with—

• an application to register an enduring power of attorney,
• an objection to an application to register an enduring power of attorney,
• a notification to the Director by an attorney
• an objection),
• the issue of an authenticated copy of an enduring power of attorney or part thereof
• the variation of an enduring power of attorney, and
• the revocation of an enduring power of attorney, and
• the circumstances in which the fees) may be waived by the Director.

Fees

In prescribing the fees  the Minister shall take into account the nature of the matter for which the fee is being charged, the costs associated with that matter and the need to ensure the protection of the assets and funds of a donor.]

Matters to be specified by Director in relation to enduring powers of attorney. The Director may, with the consent of the Minister, specify in writing the following:

• the form of an instrument creating an enduring power of attorney;
• the form of application to register an instrument;
• the form of notice of an application to register an instrument;
• the form of notice by a donor, or, with his or her written consent, his or her attorney,
• the form of an objection to the registration of an instrument;
• the form to notify the Director that a donor lacks capacity in relation to one or more relevant decisions that are the subject of an instrument creating an enduring power of attorney that was registered by the donor;
• the form of notice of a notification to the Director;
• the form of an objection to the acceptance of a notification by the Director;
• the form of notice by an attorney
• the form of variation or revocation of an enduring power of attorney;
• the form of a request to the Director
• the form of a request to the Director and the accompanying written notice of revocation
• the form of notice of revocation of an enduring power of attorney;
• the form of notice
• the form of a report to be submitted by an attorney to the Director,
• and the forms may contain such further information as the Director considers appropriate.

When making a specification under subsection (1), the Director shall—

• take into account the guiding principles specified and the other provisions of this Act,
• ensure that the forms are easy to read and to understand,
• ensure that the forms are made available in accessible formats, and
• take into account the different persons or classes or persons that will be using or reading the forms.]

Offences in relation to Enduring Powers of Attorney

A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke an enduring power of attorney commits an offence and shall be liable—

• on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
• on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.

A person who, in an instrument creating an enduring power of attorney, in an application for registration of an enduring power of attorney, or in connection with such an application, or in a notification to the Director under or in connection with such a notification makes a statement which he or she knows to be false in a material particular commits an offence and shall be liable—

• on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or
• on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for a term not exceeding 2 years, or both.

Coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility, is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, create, vary or revoke an enduring power of attorney.

Transitional Provisions

The 2015 / 2022 Acta shall not apply to—

• an enduring power of attorney under the Act of 1996,
• an attorney under the Act of 1996, and
• a donor under the Act of 1996.

From the date of commencement of the Act (April 2023)

• a person shall not create an enduring power of attorney under the Act of 1996, and
• the Act of 1996 shall not apply to an enduring power of attorney created after that date.