What an EPA is
An enduring power of attorney is made while you have capacity: you appoint one or more attorneys and define what they may do — property and affairs, personal welfare decisions, or both, with whatever limits you choose. Unlike an ordinary power of attorney, it is built to survive incapacity: indeed its whole purpose is the day you can no longer decide for yourself. Until that day, you remain in charge.
The modern process: two stages, run through the DSS
The 2015 Act moved EPAs into the Decision Support Service's hands, with a process designed to be driven online by the donor:
- Stage one — making and registering. The EPA is created in the prescribed form through the DSS process, with the required statements (including as to the donor's understanding), notice to specified people such as close family, and an objection window — then registered with the DSS. At this point it exists but confers no authority
- Stage two — notification on loss of capacity. If the donor later lacks capacity for the relevant decisions, the attorney notifies the DSS with the required medical evidence; once the notification is accepted, the EPA takes effect and the attorney's authority begins — along with reporting obligations to the DSS
Attorneys are supervised appointees
An attorney under an active EPA is an intervener bound by the guiding principles, owes accounts and reports, and sits within the DSS's supervision and complaints machinery — a significant change from the old regime, covered fully in attorneys' duties and DSS supervision. EPAs made before 2023 under the old law are a separate topic: EPAs under the 1996 Act.
Where an EPA fits in a family's planning
An EPA is the instrument you make early, while capacity is beyond question — it has no role once capacity for the decision to make one is gone, at which point the DMR route is what remains. Whether an EPA, an advance healthcare directive, a co-decision-making agreement or some combination fits your situation is exactly what the comparison guide and the Pathway Finder are for — and what we talk through in a capacity-planning consultation.
Frequently asked questions
Who can make an EPA?
Any adult with capacity to understand what an EPA is and does — the appointment, the powers, and when they'd take effect. Capacity to make an EPA is assessed like any other decision under the functional test, which is why timing matters: the instrument must be made while that capacity is clearly present.
Does an EPA take effect as soon as it's registered?
No. Registration on creation is stage one — the EPA sits dormant while the donor retains capacity. It confers authority only after stage two: notification to the DSS, with medical evidence, that the donor now lacks capacity for the relevant decisions.
Can family members object to an EPA?
The process includes notice to specified people and defined objection windows — at the making/registration stage and again around notification. Objections go through the DSS and, where necessary, the court. If you've received a notice and have concerns, the windows are short — take advice promptly.
What happens if there's no EPA and capacity is lost?
Nobody — spouse and children included — automatically steps in. The family route becomes a co-decision-making agreement where genuinely joint decisions remain possible, or a Circuit Court application for a decision-making representation order where they don't. That contrast is why planning instruments exist.
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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