Dear Aisling

My father suffers from dementia and is residing in a nursing home.

When my brother questioned the medication our father was on, we were told we had effectively no say in decisions relating to our father’s care.

When my siblings started raising concerns about the standard of care my father was receiving they were either subjected to restricted visiting hours or were refused access to visit him.

I assumed that a next of kin would have a say? Is there anything we can do to regain control of his affairs?”

Dear reader

Firstly the law as it applies to a person’s capacity to make decisions is set to change and I will set out in the next article the changes that are due to take effect from October 2022.

However I think it is useful to set out firstly the law that currently applies.

A person is entitled to make their own decisions about their own care.

However if they are unable to do so due to diminished mental capacity a person can be appointed to make decisions on their behalf either under Wardship or An Enduring Power of Attorney (EPA).

The term ‘next of kin’ is terminology used all the time in health care services. In reality the next of kin have no legal effect unless they are appointed as Attorney under an EPA.

In the absence of such an appointment, the clinician or health care professional has the authority to make treatment decisions under medical council guidelines.

Wards of Court

The main purpose of Wardship is to look after the welfare and to protect the property of a person where this is considered necessary.

It is important for business people such as farmers to have an EPA

The Office of Wards of Court based in Dublin is responsible for administering this process. The legal costs of a Wardship are in most cases paid out of the Ward’s property.

There are two types of Wardship. One covers adults who may require the Court’s protection because of mental incapacity. The second concerns persons under 18 years of age who require the Court’s protection.

A family member, through their solicitor, usually makes the request to bring a person into Wardship. However, the request can be made by a person’s own solicitor, doctor or the hospital authorities if he or she is a patient in a hospital.

The Committee is the person appointed by the Court to act on behalf of the Ward.

The Committee is usually but not always the person who made the Wardship application i.e. a family member. In some cases, where there is no suitable relative who is prepared to act, where there is disagreement among the Ward’s relatives as to how his or her affairs should be managed, or where a conflict of interest arises the Court may appoint the General Solicitor for Minors and Wards of Court (a public official in the service of the State) to act as Committee.

Aisling Meehan speaking at an ICMSA event on farm succession in the Tullamore Court Hotel on 16 January 2019 \ Thomas O'Hanlon

Once a person is taken into Wardship, a member of staff of the office known as a case officer will be assigned to look after his or her affairs. The Committee or his or her solicitor will correspond with the case officer in relation to the management of the Ward’s affairs.

The Committee is required to account to the Office for all funds received and payments made by him or her in relation to the Ward.

Where it is necessary to meet nursing home expenses or other debts of the Ward, the Court may permit the Committee either to sell or to let the property. If a Ward needs medical treatment, e.g. surgery, the approval of the Court should be obtained.

Enduring Power of Attorney

This enables the person creating the Enduring Power of Attorney (EPA), to appoint a person of their choosing such as a spouse or child to act on their behalf in the event of them losing mental capacity.

The EPA does not take effect until a person loses mental capacity e.g. if they developed Alzheimer’s or were in a coma etc. It is then registered in the High Court.

The EPA can be as broad or as narrow as the person wants it to be e.g. it can be so broad as to enable the attorney to decide who can and cannot visit the incapacitated person or it can be limited to just business decisions.

It is important for business people such as farmers to have an EPA otherwise the business could effectively be shut down if the person no longer had capacity to conduct their own affairs.

A solicitor would generally draw up an EPA at the same time as doing a Will. The person creating the EPA will have to get their doctor to sign a form confirming that they are of sound mind at the time of creating the EPA.

At least two people other than the attorney appointed must also be notified of the creation of an EPA, such as children, so that they have an opportunity to object if there is anything of concern.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie