Capacity Matters – The Current Law On Diminished Capacity

The question of capacity has been highlighted in recent years due to Ireland’s ageing population and an increase in conditions affecting capacity, such as dementia and Alzheimer’s Disease. Essentially, people are living longer and the statistics indicate that the older people get, the more likely it is that they will develop capacity issues.

The current legal regime dealing with capacity issues adopts an all or nothing approach. The much awaited Assisted Decision-Making (Capacity) Act, 2015 finally passed last December – but has not yet been brought into force! This will allow a more “rights based approach” to the area of capacity.

An Enduring Power of Attorney (EPA) deals with end of capacity.

An EPA is a “just in case” document under which someone (the Donor) can give power of attorney to persons nominated by them (usually next of kin) to deal with their financial affairs and personal care decisions in the event of a loss of capacity.

The EPA has no effect until it is registered in the High Court. The procedure for making an EPA is as follows:

• Instructions are given to the Solicitor verifying the level of control the Donor wishes to give their Attorneys
• The EPA is drafted and the signing of same is arranged for the Donor and their chosen Attorneys
• A standard medical certificate is sent to the Donor’s doctor to certify their capacity to make the EPA (the doctor is advised of the legal test applicable).
• The Donor’s chosen Notice Parties are served with a notice confirming they have executed an EPA (this does not give the details in the EPA) (the notice parties are the Donor’s next of kin – other than the chosen Attorneys)
• All documentation is stored together until such time as it is needed.

In the event of a loss of capacity by the Donor the EPA can be registered by making an application to the Office of the Wards of Court; a division of the High Court. The process for registration of an EPA includes safeguards such as medical certification of loss of capacity and service of intention to register the EPA on the Donor and the original Notice Parties. An objection to the registration of an EPA can be made to the High Court by the Donor or Notice Parties within five weeks from the date of service of the notice.

Once the EPA is registered and power of attorney is granted there is no Court supervision unless a specific application is brought to the Courts attention.

It is important to note that Enduring power of attorneys do not cover medical decisions.

If you do not have an Enduring Power of Attorney and you suffer a loss of capacity, the only alternative is for an application to be brought to the High Court for an Order declaring you to be a Ward of Court.