An RTÉ Investigates programme called Trouble Makers, recently aired on RTÉ 1. The programme caught a lot of people unawares and highlighted how a family can lose control of decision making in relation to an incapacitated loved one if the correct legal provisions are not in place.
Medical decisions
The programme depicted various families who, when they voiced concerns, were either subjected to restricted visiting hours or were refused access to visit their loved ones who were in long-term care.
One would have automatically assumed that a next of kin would be entitled to visit their loved ones, however that is not the case. One contributor who questioned the medication her father was on, found out that the family had effectively no say in decisions relating to her father’s care.
In the absence of such an appointment, the clinician or healthcare professional has the authority to make treatment decisions under medical council guidelines
The term “next of kin” is 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 “Enduring Power of Attorney”. In the absence of such an appointment, the clinician or healthcare professional has the authority to make treatment decisions under medical council guidelines.
Of course, 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 (can be due to an illness or disability) a person can be appointed to make decisions on their behalf either under “wardship” or “an Enduring power of attorney”.
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. 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.
A family member, through their solicitor, usually makes the request to bring a person into wardship
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 does not have to be made by a family member. The person’s own solicitor, his or her doctor or the hospital authorities if he/she is a patient in a hospital may make the application.
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 ie 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.
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
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/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, eg surgery, the approval of the court should be obtained.
Enduring power of attorney
If, prior to becoming mentally incapacitated, a person has made alternative arrangements, by completing a document called an Enduring Power of Attorney (EPA), it should not be necessary to bring wardship proceedings.
It is much quicker for an attorney to be appointed under an EPA than a committee being appointed under wardship
This enables the person creating the 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. Unlike wardship, there is not the same level of oversight as to how the attorney conducts the persons affairs. Also, it is much quicker for an attorney to be appointed under an EPA than a committee being appointed under wardship.
The EPA does not take affect until a person loses mental capacity eg 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 eg 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 overnight in the event of an accident where the person would not have the ability to conduct their own business 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.
The court may decide it is in the best interests of the person to get round-the-clock-care in a nursing home and thus the farm should be sold to pay for that care
Under wardship, the priority is to provide for the incapacitated person. For example, the court may decide it is in the best interests of the person to get round-the-clock-care in a nursing home and thus the farm should be sold to pay for that care.
Whereas under an EPA, the spouse as attorney who knows the person very well might decide that they would prefer to stay in their own home and also that they would hate to see the farm being sold. So, if you want to avoid the courts having a say in your business affairs, it is advisable to get an EPA drawn up without delay.
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. Email info@agrisolicitors.ie
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