Friday 9 December 2016

When decisions about retirement affect loved ones

Recent changes in the law could help individuals approaching their later years in complex situations, writes John Costello

John Costello

Published 13/11/2016 | 02:30

To enter into a co-decision making agreement, a healthcare professional must decide on whether or not the person has the capacity to enter into such an agreement (Stock picture)
To enter into a co-decision making agreement, a healthcare professional must decide on whether or not the person has the capacity to enter into such an agreement (Stock picture)

At many stages of our adult life we have to make important decisions about partners, offspring and accommodation. When we are ill, incapacitated or not in a position to take such decisions ourselves they become even more complicated.

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Recent changes in the law brought about by the Assisted Decision-Making (Capacity) Act 2015 are aimed at helping and clarifying those situations. If we look at one family scenario, many of these issues become apparent - and also the manner in which they can be handled.

Mary is a widow aged 85 living in her own house with her daughter Sinead, aged 50, who has Down syndrome. Mary's older daughter Susan, aged 52, is married with children and has her own house. Mary was diagnosed with Alzheimer's a couple of years ago and she is now concerned about the future welfare of Sinead.

Mary made a will in which she left her house in a trust for Sinead's lifetime and left the residue of her estate including savings of about €100,000, to her older daughter, Susan. Mary is quite happy with her will. However, given the degenerative nature of Mary's illness, she should make an Enduring Power of Attorney, as long as she still has the capacity to do so.

In her power of attorney she could appoint her daughter Susan as the attorney to manage Mary's financial affairs, personal affairs and medical affairs, if Mary is unable to express her wishes because of her medical condition. However, if Mary has not sufficient mental capacity, she may have to be made a Ward of Court.

The 2015 Act seeks to assist relevant persons who have reduced decision-making capacity to manage their affairs and it introduces a system for support in decision making, giving these persons greater autonomy in any decisions concerning their lives. In effect, it enables individuals - called 'Interveners' - to support the relevant person while enabling that person to have their voice heard.

The Act provides for the appointment of different types of 'Interveners' to assist in making decisions regarding that person's personal welfare, or property and affairs, or both. They can assist where that person has a limited or fluctuating capacity or is in a permanent state of health where their capacity is in question.

In our scenario it would be preferable if the provisions of the Capacity Act could be used to assist Mary, rather than have her made a Ward of Court. So, if someone like Mary has no capacity to nominate a relevant 'Intervener' to assist her, then a decision-making representative would have to be appointed by the Circuit Court.

This representative would make decisions regarding the property and affairs or personal welfare of Mary, taking into account the known will and preferences of Mary. It is likely that Susan would be the most appropriate person to be appointed a decision-making representative.

The principles applying under the Act, would also be relevant for Mary's younger daughter Sinéad who has Down syndrome. As she would not be able to make a lot of decisions herself, she could nominate a family member, friend or other relevant person, to be her co-decision maker under the Act.

In this situation, the decision making authority remains with Sinéad, who will be actively assisted in making and implementing decisions with her co-decision maker. Sinead has the option of appointing her sister Susan, another family member, friend or a third party as her co-decision maker.

To enter into a co-decision making agreement, a healthcare professional must decide on whether or not the person has the capacity to enter into such an agreement; and the director of the Decision Support Service has to approve it and be satisfied that it reflects the will and preferences of the person who is appointing the co-decision maker.

What is very welcome about the Act is that it moves away from the paternalistic way of looking after what we decide are in people's "best interest" and it recognises that it is a person's right to make decisions about their own lives - while aiding and supporting them.

John Costello is a solicitor at Orpen Franks, and author of 'Law and Finance in Retirement' (Lonsdale)

Sunday Independent

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