Irish notary law and practice, while rooted in centuries of tradition, is not static. Recent years have seen significant legislative changes that affect how notarial services operate, particularly in the areas of powers of attorney, mental capacity law, and international document authentication. This guide summarises the key recent developments.
Why Changes Matter to You
Changes to the law affect the services you receive from a Notary Public. Understanding recent updates helps you make informed decisions and ensures your documents comply with current requirements. If you set up a power of attorney five years ago, for example, the rules may have changed.
The Assisted Decision-Making (Capacity) Act 2015
The most significant recent change affecting notary services is the commencement of the Assisted Decision-Making (Capacity) Act 2015. This legislation:
- Reformed capacity law: Replaced the outdated wardship system with a modern, rights-based approach to decision-making capacity.
- Established the Decision Support Service (DSS): A new body that oversees arrangements for people who need support with decision-making.
- Changed EPA rules: Enduring Powers of Attorney are now registered with the DSS rather than the former system.
- Created new support options: Including co-decision-making agreements and decision-making representation orders.
The Act commenced in phases, with key provisions taking effect from April 2023.
The Decision Support Service
The Decision Support Service (DSS), established under the 2015 Act, is a new body within the Mental Health Commission. Its functions include:
- Registering EPAs: When an attorney needs to activate an EPA, they apply to the DSS for registration.
- Maintaining a register: The DSS maintains a register of EPAs and other decision-making support arrangements.
- Oversight: Providing oversight and accountability for attorneys acting under EPAs.
- Complaints: Handling complaints about how an attorney is exercising their powers.
If you have an existing EPA created before the DSS was established, it remains valid. However, the registration process now goes through the DSS.
Changes to Enduring Powers of Attorney
The Assisted Decision-Making Act introduced several changes to how EPAs work:
- Prescribed form: EPAs must be in the form prescribed by the legislation. The form requirements have been updated.
- Registration body: Registration is now with the DSS, not the courts.
- Enhanced safeguards: Additional protections for the donor, including oversight by the DSS.
- Notice requirements: Updated requirements for notifying people when an EPA is being registered.
- Existing EPAs: EPAs created under the old system (Powers of Attorney Act 1996) remain valid and can still be registered.
If you are considering setting up an EPA, it is important to work with a solicitor who is up to date with the current requirements.
Apostille and International Authentication Updates
International document authentication has also seen developments:
- China joins Hague Convention: China joined the Hague Apostille Convention in November 2023, meaning Irish documents can now be apostilled for use in China rather than going through the longer embassy legalisation route.
- Electronic apostilles: There is ongoing international discussion about electronic apostilles (e-Apostilles), though Ireland currently issues paper apostilles.
- DFA processing: The Department of Foreign Affairs has maintained its authentication service, with options for in-person and postal applications.
Looking Ahead
Several areas may see further development in the coming years:
- Digital notarisation: While not currently permitted in Ireland, there is growing international momentum toward electronic and remote notarisation. See our guide on electronic notarisation in Ireland.
- EU digital identity: The EU's revised eIDAS Regulation may impact how identity verification is conducted for notarial acts.
- Further capacity law reform: The Decision Support Service continues to develop its processes and guidance.
- Cross-border practice: Post-Brexit developments continue to affect Ireland-UK document flows.
Frequently Asked Questions
How do recent changes affect my existing EPA?
If you have an existing EPA created under the Powers of Attorney Act 1996, it remains valid. When it needs to be registered, the process now goes through the Decision Support Service rather than the courts.
Do I need to update my existing EPA?
Not necessarily. Existing EPAs remain valid. However, if you have concerns or if your circumstances have changed, consult a solicitor to review your arrangements.
Has the Hague Convention expanded recently?
Yes. Most notably, China joined the Convention in November 2023, simplifying document authentication for Irish documents going to China.
Will online notarisation come to Ireland?
Possibly in the future, but there is currently no legislation permitting it. Any change would require primary legislation.
Need Up-to-Date Legal Advice?
Hugh Phelan stays current with all changes in notary law and practice. Contact his office at 021-489-7134 or email info@phelansolicitors.com.
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