For over 140 years the Lunacy Regulations Act provided the foundation for Ireland’s approach to issues of capacity. The Assisted Decision Making Act, which commenced this year, has thankfully replaced it.
The change has rejuvenated the entire legal area. It will help people when they reach a stage in life when they are not able to make decisions.[soundcloud id=’268121370′]
A move for the better
Under the old system, capacity was a whole or nothing status. You either had it or you did not. It did not matter if the decision was what to get your nephew for his birthday, where to go on holiday or what health care treatment you were to receive.
Under the new system, capacity is decided on an issue by issue basis. A person may be deemed to have capacity to choose Bulgaria over Barcelona for a sun get away but not as to whether they should receive medication.
Integrity of the person
Motivation for the change arose from a realisation that the old ‘all or nothing’ system was inconsistent with the modern approach to integrity of the person and human rights.
Crucially, the new legislation also places an obligation on people such as health care professionals, accountants, doctors or solicitors. They need to help those suspected of lacking capacity in making a decision rather than declaring them incapable outright.
Statute specifies the professional must do all they can within reason to help the person in question make a decision. The Act therefore prevents someone ‘ticking the box’ of incapacity and moving on. It requires those charged with caring for the person to go further. They need to determine the level of capacity and to assist in decision making processes.
As such, the old Ward of Court, absolute approach, has been abolished in favour of the new assisted decision making process.
For those previously declared ‘Wards of Court’, a review of each person is to be conducted so as to establish the correct level of capacity.
An extremely important development is the updated Enduring Power of Attorney. This . now includes a review and report mechanism. The Act transfers the management of this area to a Central Authority.
Another important development is the ability to create what has been termed an ‘Advance Health Care Directive’. Essentially, an Advanced Health Care Directive is a future health care plan. It set out preferences for future treatment if they no longer have the capacity to make care decisions.
A person can now, therefore, decide if they want intervention or not in certain circumstances or if they want a certain treatment or other.
A directive can be made at any point as long as you have capacity to do so. It is very relevant at the early stages of diseases such as Parkinson’s as to how you want treatment to develop.
A directive can also be changed at any time while you have capacity to do so. It does not irrevocably commit you to certain future decisions if you have a change of mind.
A welcome change
While the new approach is in its infancy in Ireland, the move is a welcome one. It is a step forward in human rights and preserving the dignity of the individual.
Further Reading About Wills, Trusts & Taxation
Your executor carries out (or executes) the wishes set out in your will and choosing the right person or persons is an important decision.
It should be somebody you trust to do this job. Ideally, it should be a job given to two people to act as co-executors.
The area of law on children is delicate and complex. The most common issues that arise with children are guardianship and custody. However, the scope of children within the law goes far beyond parental rights.
One common aspect is that of entering into a contract with a child.
Succession Rights for Separating Couples
There are important protections in Irish law for partners succession rights If they have been left out, or not properly provided for in the will of their deceased spouse. there are safeguards.
Under the Succession Act 1965, a spouse or partner has certain succession rights. They are entitled to half of the estate if there are no children. Alternatively, they will be entitled to one third if there are children. This right cannot be ignored by a Will unless you agree to waive your rights. This one-half or one-third share of the deceased’s estate is known as the Spouse’s Legal Right Share.