GALWAY SOLICITOR’S BAR ASSOCIATION CPD SINEAD MC DONAGH BL THURSDAY 2 ND April 2015

OVERVIEW

 Proposed changes  Legislative history  Capacity and guiding principles  Types of decision maker  Wards  Enduring Power of Attorney  Public Guardian  Costs

CHANGES

       Radical overhaul of the law relating to capacity.

Replace archaic Wards of Court regulated by Lunacy Regulation (Ireland) Act 1871 and Rules of Court.

Replace Enduring Powers of Attorney.

Ratify the United Nations Convention on Persons With Disabilities (signed by Ireland 30 March 2007).

Ratify the Hague Convention on the International Protection of Adults (signed by Ireland 18 th September 2008).

Change from status based approach to capacity to function based approach.

Repeal of Marriage of Lunatics Act 1811.

LEGISLATIVE HISTORY

 Draft Bill entitled Mental Capacity and Guardianship Bill proposed by Law Reform Commission Report on “Vulnerable Adults and the Law” 2006  That Bill introduced to the Seanad in February 2007 as a Private members Bill but lapsed with dissolution of Oireachtas  Introduced to Seanad in February 2008 as a Private Members Bill but overtaken by...

 Mental Capacity Bill proposed by Government in September 2008  Current Bill published in July 2013

CAPACITY

  Section 3 (1) a person’s capacity shall be assessed on the basis of his or her ability to understand the nature and consequences of a decision to be made by him in the context of the available choices at the time the decision is to be made.

Section 3(2) a person lacks the capacity to make a decision if he or she is unable – (a) to understand the information relevant to the decision, (b) to retain the information, (c) to use or weigh that information as part of the process of making the decision, (d) to communicate his or her decision.

GUIDING PRINCIPLES

 Presumed the relevant person has capacity unless the contrary is shown.

 Relevant person shall not be considered as unable to make a decision unless all practicable steps have been taken to help him to do so.

 Relevant Person shall not be considered as unable to make a decision merely by the fact that the decision is or is likely to be an unwise decision.

 There shall be no intervention unless it is necessary to do so having regard to the individual circumstances of the case.

GUIDING PRINCPLES

    An intervention in respect of a relevant person shall be made in a manner that minimises (i) the restrictions of the relevant person’s rights, (ii) the restrictions of the relevant person’s freedom, have due regard to the need to respect the right of the relevant person to his or her dignity, bodily integrity, privacy and autonomy.

The intervener in making an intervention shall encourage the relevant person to participate as fully as possible in the intervention.

The intervener shall give effect, in so far as practicable, to the past and present will and preferences of the relevant person, in so far as they are reasonably ascertainable.

The intervener shall take into account the beliefs and values of the relevant person, and any other factors which the relevant person would be likely to consider

GUIDING PRINCIPLES

 (i) Unless the intervener reasonably considers that it is not appropriate or practicable to do so, shall consider the views of Any person named by the relevant person, (ii)  Any decision-making assistant, co-decision-maker, decision making representative or attorney.

The intervener may consider the views of (i) (ii) (iii)  Any person engaged in caring for the relevant person, Any person who has a bona fide interest in the welfare of the relevant person, Healthcare professionals.

In the case of an intervention, regard shall be had to the likelihood of recovery of the relevant person’s capacity, and the urgency of making the intervention prior to the recovery.

TYPES OF DECISION-MAKERS

 Informal Decision Maker.

 Assisted decision-making  Co-decision-making  Decision by court  Decision-making representative appointed by Court

INFORMAL DECISION MAKERS

     May take or authorise the taking of an action in respect of the personal welfare (including healthcare and treatment) of the relevant person. May not make decision in relation to the property and affairs of the relevant person.

May not make decision in relation to the property and affairs of the relevant person.

May not make a decision in respect of matters reserved to the High Court.

May not take action in conflict with those of a decision making assistant, co-decision maker, decision-making representative.

Provisions are very scant- would not seem to offer much protection - could be open to abuse.

ASSISTED DECISION-MAKING AGREEMENT

 A person (over 18) who considers that his capacity is in question, or may shortly be in question, may appoint a decision-making assistant.

 May be for one, or more than one decision.

 Decision relates to “personal welfare” or “property and affairs”.

 The agreement must comply with regulations to be made regarding the form and formalities of the agreement.

 May appoint more than one person but not in respect of the same decision.

DECISION-MAKING ASSISTANT

 Function of a decision-making assistant is to advise by explaining relevant information.

 To ascertain the will and preference of the appointer.

 To assist the appointer to obtain any information or personal records.

 To assist the appointer to make and express a relevant decision.

 To endeavour implemented.

to ensure the decisions are

PERSONAL WELFARE

 Personal Welfare defined in Section 25 to include  Where the person should live,  Persons with whom the relevant person should have contact,  Employment, training, rehabilitation,  Diet and dress,  Inspection of personal papers,  Whether the person may travel,  Granting or refusing consent to carrying out, or continuation of treatment.

PROPERTY AND AFFAIRS

         Defined in section 26 and include Custody, control and management of relevant person's property or property rights, Acquisition of property in the name of the relevant person, Dissolving a partnership, Carrying out of any contract, Discharge of debts, Execution of any powers vested in the relevant person as tenant for life, The conduct of proceedings before any court or tribunal, Making an application for housing or social welfare or any other benefits.

APPLICATIONS TO COURT

     Section 15, provides that the court on application to it, may make one or both of the following declarations (a) that the relevant person lacks the capacity unless the assistance of a co-decision-maker is made available to him or her to make a decision relating to his or her personal welfare, or property and affairs, or both.

(b) that the relevant person lacks the capacity even if such assistance is made available to them, to make a decision relating to his or personal welfare, or property an affairs, or both.

The court may direct that such reports as the court considers necessary be furnished to it including, medical reports, financial reports, or reports from healthcare professionals.

No requirement for court to consult with experts.

JURISDCTION

       Section 4 provides that the circuit court shall have exclusive jurisdiction save certain matters reserved to the High Court.

The High Court shall have jurisdiction relating to every matter in connection with (a) non-therapeutic sterilisation, (b) withdrawal of artificial life sustaining treatment, (c) the donation of an organ.

The High Court has jurisdiction regarding the discharge of Wards of Court.

The High Court has jurisdiction regarding enduing powers of attorney.

    

CO-DECISION-MAKING AGREEMENT

Section 18 provides for a decision to be made jointly with the appointer and the co-decision-maker.

Decision regarding personal welfare matters or the relevant person's property or affairs.

Regulations to be made to provide for the form and formality of the agreement.

Section 19 provides that a co-decision-maker shall acquiesce in a relevant decision if (a) a reasonable person could have made that relevant decision; and (b) no harm to the appointer or any other person is likely to result from that relevant decision.

Section 21 sets out the scope and functions of the co-decision-maker.

CO-DECISION-MAKING ORDER

      A co-decision-making agreement is of no effect until the court makes an order approving the agreement pursuant to section 17.

The court must first make a declaration pursuant to section 15 (1) (a) above.

The application is made to the court by the relevant person, or any other specified persons, provided that they have the consent of the relevant person.

The court will consider if the agreement was made in accordance with the provisions of the act and the will and preference of the relevant person.

The Court will not make an order unless both parties consent to same.

Provides for review of the agreement.

    

COURT APPOINTED DECISION MAKING REPRESENTATIVE

Where the court has made a declaration pursuant to section 15 (1) (b) the court may make one or both of the following orders; (a) an order making the decision concerned on behalf of the relevant person where it is satisfied that the matter is urgent or, (b) an order appointing a person to be a decision-making representative for the relevant person for the purpose of making one or more than on decision specified in the order. Court may remove the representative where satisfied that they are acting outside the scope of their authority or in a manner that is not in the interest of the relevant person.

Limitation on appointment of certain persons

WARDS

     Section 35 provides that an application for the review of the capacity of a ward aged over 18 may be made at any time.

The wardship court shall review the capacity of wards over 18 years of age within 3 years of the commencement of the section.

Where the wardship court is satisfied the ward does not lack capacity, it shall discharge the ward.

Where the ward lacks capacity the court shall make the appropriate declaration pursuant to section 15 (1) (a) or (b) and the court may make such order orders and take other actions as provided for.

The court shall discharge the ward from wardship and may make such ancillary orders and give such directions as it thinks fit.

ENDURING POWERS OF ATTORNEY

        Part 6 (section 38 to 52) will ultimately replace the Power of Attorney Act, 1996 The Bill does not apply to powers created under the 1996 Act.

The exception is where powers have been created under the 1996 Act but was not registered before the commencement of the Bill – the new regime applies on registration EPA framework remains largely the same except it is under the new regime.

Under the 1996 Act attorney could make personal care decision but did not include the giving or refusing of medical treatment.

Bill provides that the attorney may give or refuse treatment.

The attorney may not refuse life sustaining treatment.

The registration of a an instrument purporting to create an EPA is with the Public Guardian

PUBLIC GUARDIAN

      New office of Public Guardian will replace the Registrar of Wards of Court.

Does not have to be a barrister- someone with appropriate qualifications, experience.

Functions assistants, include supervision co-decision-makers, representatives and attorneys.

of decision-making decision-making May be required by the court to have custody, control and management of the property of a relevant person.

To establish a panel of decision-making representatives.

To promote public awareness.

PROBATE

    Section 108 (1) provides nothing in this Act shall be construed as altering or amending the law relating to the capacity of a person to make a will.

Section 108 (2) where a person who has made a valid will loses testamentary capacity the High Court may, acting on its own motion or on application to it by the Public Guardian, alter the will where it is satisfied that exceptional circumstances have arisen since the loss of testamentary capacity and the interest of justice so demand, and a will so altered shall have the same force and effect as if the alteration had been made by that testator in the manner required by the succession act, 1965.

No interference with testamentary capacity.

long-established rules regarding Permits the High Court to redesign a person's will during their lifetime.

COSTS

 In relation to applications to the Circuit Court Section 14 (6) (a) provides that parties who retain legal representation are liable for their own costs.  If an applicant applies for civil legal aid and is unsuccessful the Court may make an order for any costs to be paid in full or in part from the assets of the relevant person.  May be unduly harsh on the relevant person who is objecting to any such application in the first place.

 No automatic provision for legal representation similar to the Mental Health Act, 2001 or to Guardians appointed for children.

STAGES

        December 2013- bill referred to select committee on Justice Defence and Equality.

February 2014 for submissions.

scheme for advanced care directive for incorporation into the bill published - March 2014 closing date Can be made where adult has capacity.

Primarily concern advance refusal of treatment (including life saving treatment).

Person can appoint patient designated healthcare representative (PDHR).

If person has appointed attorney may state that attorney has power of PDHR.

Person may revoke AHD.

Bill still at committee stage!