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Assisted Decision-MakingMary Molloy Solicitors

Attorneys' Duties and DSS Supervision

Being someone's attorney is a legal office, not a favour. Once an EPA is active, the attorney acts under statutory duties, DSS reporting and a complaints regime — here is the job, honestly described.

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Written by Richard O'Shea, Solicitor TEP · Mary Molloy Solicitors, established 1981 · Last reviewed 21 August 2026

The duties in outline

  • Stay inside the instrument — an attorney holds the powers the EPA grants, no more; decisions outside it belong to other arrangements or the court
  • The guiding principles as law — presume capacity decision by decision, support the donor's own decision-making where possible, choose least-restrictive options, and give effect to the donor's will and preferences — the donor's, not the family's
  • Keep the donor's money separate — no mingling with your own, proper records of dealings, and accounts for property and affairs
  • Avoid conflicts and self-benefit — gifts and payments to the attorney or others are tightly constrained by the instrument and the law
  • Report — attorneys under active EPAs owe scheduled reports (including accounts) to the Decision Support Service

The supervision machinery

The DSS reviews reports, can seek information, and operates the complaints process — anyone concerned about an attorney's conduct can complain, and investigations can lead to court. Visitors can be sent to meet the donor. The court can determine questions about an EPA's meaning or an attorney's conduct, give directions, and ultimately remove an attorney. None of this should frighten an honest attorney: for the diligent, the paper trail is protection — the sibling who suspects the worst is answered by the accounts, not by argument.

Practical housekeeping for attorneys

Open a dedicated account structure from day one. Diary the reporting dates. Record significant decisions with a line of reasoning tied to the donor's known wishes. Ask before acting near the edges — gifts, family transactions, the house. And if the family is hostile, treat every step as one you may someday explain to a judge — because you may. Attorneys who come to us mid-difficulty nearly always could have avoided it with these habits; attorneys who start with them rarely need us at all.

Frequently asked questions

Can an attorney pay themselves for the work?

Only as the instrument and the law allow — expenses properly incurred are recoverable, and any remuneration must be grounded in the EPA's terms. Self-payment beyond that is the fastest route into the complaints machinery.

Can an attorney sell the donor's house?

Only if the EPA's powers cover it, the donor lacks capacity for the decision, and the sale honours the donor's will and preferences — and even then, care: the family home attracts scrutiny, and some transactions warrant directions from the court before, not after. See selling property and capacity.

I think my father's attorney is misusing his money. What can I do?

Gather what you can lawfully see, then act on two tracks: a complaint to the DSS, and advice on court options — directions, accounts, removal. Speed matters; dissipated funds are recovered far less often than they are stopped. See objections and disputes.

Talk to a solicitor who works with families through capacity law every week. Call Mary Molloy Solicitors today.

Whether you are planning ahead, facing a capacity application, or simply unsure which arrangement your family needs, an early conversation costs little and prevents a lot.

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richardoshea@marymolloysolicitors.com · Dublin: The Ormond Building, 31–36 Ormond Quay Upper, Dublin 7, D07 EE37 · Kilkenny: 2 Rose Inn Street, Kilkenny, R95 W58D
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