MENTAL HEALTH AND CAPACITY LAW

While it may be the last thing on most people’s minds, preparing for the possibility of ill health causing mental incapacity in our lifetime is becoming increasingly important. Life expectancy has increased globally, therefore we need to be mindful of all eventualities and prepare for these events before they occur.

We at Sweeney McGann know how stressful issues with your health can be, not just for individuals, but also for their friends and family and we actively advise a number of private and public clients how to best organise their legal affairs in this regard.

WHAT IS CAPACITY?

The definition of Capacity is evolving and the new Assisted Decision-Making Capacity Act 2015 (ADMCA) makes far-reaching changes to the law relating to capacity in Ireland. The ADMCA was introduced with the aim of supporting and protecting those with impaired capacity with regard to their decision making.

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

Aoife Hennessy works with both private and state funded health care clients on the area of Mental Health and Capacity Law and regularly provides in house seminars. Aoife advises state funded health care clients particularly on the implications of capacity law on their roles.

 

ENDURING POWER OF ATTORNEY

We advise all our clients to prepare for the possibility that a time may come when they may be mentally incapacitated and unable to understand the nature of the decisions to be made. An Enduring Power of Attorney (EPA), often referred to as a living will, is one of the most effective and cost efficient mechanisms for providing for mental incapacity.

The new ADMCA provides for EPA’s and states that a person may appoint another person (referred to as an Attorney) on whom he/she can confer either;

(a) A general authority to act on the donor’s behalf in relation to all or a specified part of the donor’s property and affairs; or

(b) Authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, which may be subject to conditions and restrictions.

An EPA shall not enter into force until the Donor lacks capacity on one or more relevant decisions which are the subject of the enduring power of attorney, and the instrument has been registered. Under the new ADMCA, EPA’s will be registered with The Director of the Decision Support Service (DDSS). Under the current legislation EPA’s are registered with The Wards of Court Office. Once registered, the Enduring Power of Attorney allows attorney to make decisions in relation to the assets and property and to make personal care decisions on behalf of a person no longer capable of doing so.

 

For further information, please contact:

Ita Flanagan

Associate Solicitor