The Assisted Decision-Making (Capacity) Act 2015, fully commenced in April 2023, represents the most significant reform to capacity and decision-making law in Ireland in over a century. It replaced the outdated ward of court system and fundamentally changed how powers of attorney work. This article explains the key changes and their implications for anyone considering or holding a power of attorney.
Background — The Old System
Before the Act, Ireland's approach to capacity was governed by the Lunacy Regulation (Ireland) Act 1871 — a Victorian-era statute that was widely criticised as paternalistic and incompatible with modern human rights standards. Under the old system:
- Individuals who lost capacity could be made wards of court, effectively losing all decision-making autonomy
- Enduring Powers of Attorney (EPAs) under the Powers of Attorney Act 1996 allowed individuals to appoint someone to act for them if they lost capacity, but the system lacked modern safeguards
- Ireland was non-compliant with Article 12 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which requires supported decision-making
The New Framework
The 2015 Act introduces a graduated, person-centred approach to decision-making support. The key principle is that everyone is presumed to have capacity, and support should be proportionate to the person's needs. The new framework includes:
Decision-Making Assistance Agreement
A person who needs help understanding information relevant to a decision can appoint a decision-making assistant. The assistant helps the person access information, understand options, and communicate decisions — but the person retains the final decision-making power.
Co-Decision-Making Agreement
Where a person needs more support, they can appoint a co-decision-maker who makes decisions jointly with them. Both must agree on decisions within the scope of the agreement.
Enduring Power of Attorney (New-Style)
The new-style EPA, created under the 2015 Act, allows a person to appoint an attorney to make decisions on their behalf if they lose capacity in the future. Key differences from the old EPA include:
- Registration with the Decision Support Service (DSS) rather than the High Court
- Stronger notification requirements for family members
- Enhanced reporting and oversight obligations
- A requirement for the attorney to consider the donor's will and preferences
- Powers can cover personal welfare decisions, property and financial affairs, or both
Decision-Making Representative
Where a person lacks capacity and has no EPA in place, the court can appoint a decision-making representative to make specific decisions. This replaces the wardship system with more targeted, rights-based orders.
The Decision Support Service (DSS)
The DSS is the new regulatory body, operating within the Mental Health Commission. It is responsible for:
- Registering decision-making support arrangements
- Maintaining a register of EPAs, co-decision-making agreements, and decision-making assistance agreements
- Supervising attorneys and representatives
- Handling complaints and investigations
- Providing information to the public
Transitional Arrangements for Old EPAs
If you have an existing EPA created under the Powers of Attorney Act 1996:
- Already registered with the High Court: These remain valid and continue in effect
- Created but not yet registered: These can still be registered, but new EPAs must be created under the 2015 Act and registered with the DSS
Where Does the Notary Public Come In?
The creation of an EPA under the new Act involves specific legal formalities handled by a solicitor. However, a Notary Public becomes relevant when:
- International use: If a power of attorney needs to be used in another country (for property transactions, bank accounts, or legal proceedings abroad), it typically needs to be notarised and apostilled
- Foreign institutions: Banks and authorities in other countries often require notarised powers of attorney in a specific format
- Authentication: Certified copies of EPAs or related documents for international use
General Powers of Attorney — International Context
Separate from EPAs (which only activate when capacity is lost), general powers of attorney are widely used for international transactions while the donor has full capacity. These are routinely notarised for use in property purchases abroad, foreign company matters, and cross-border legal transactions. The notary's role in authenticating these documents remains unchanged under the new legislation.
Frequently Asked Questions
What replaced the old Enduring Power of Attorney system?
The Assisted Decision-Making (Capacity) Act 2015, fully commenced in April 2023, introduced a new framework including new-style EPAs registered with the Decision Support Service, plus decision-making assistance and co-decision-making agreements.
Are old Enduring Powers of Attorney still valid?
EPAs registered with the High Court before the new Act remain valid. Unregistered EPAs have a transitional period. New EPAs must be created under the 2015 Act.
Do I need a notary for an Enduring Power of Attorney?
The creation of an EPA involves a solicitor and medical practitioner. If the EPA or related documents need to be used abroad, a Notary Public may be needed for authentication and apostille.
What is the Decision Support Service?
The DSS is the body responsible for registering and supervising decision-making support arrangements under the 2015 Act, operating within the Mental Health Commission.
Need a Power of Attorney Notarised?
Hugh Phelan regularly notarises powers of attorney for international use. Contact Hugh Phelan’s office at 021-489-7134 or email info@phelansolicitors.com.
Looking for a Notary Public in Cork?
Hugh Phelan is a Solicitor & Notary Public appointed by the Chief Justice of Ireland. Same-day appointments available.
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