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If a close family member is at risk of losing their mental capacity to make decisions for themselves, there are steps you can take now to help them to make arrangements – while they still have capacity – for how they’ll be supported in making decisions about their personal life, property, and health, now or in the future.<h4>What is ‘capacity’?</h4>Capacity means being able to understand when a decision needs to be made, what that decision means, and what the consequences are.A person might lack capacity if they cannot:<ul><li>understand the information they need to make a decision,</li><li>remember the information long enough to make a choice,</li><li>use the information to weigh up options, or</li><li>communicate their decision.</li></ul>A person’s mental capacity can vary – for example a person might be able to make some decisions but not others, or need more help in making a decision at certain times. The assessment of the person’s capacity and the next steps to take will depend on the individual circumstances and the type of decision-support arrangement that is chosen. If you are concerned, you and your loved one should consider talking to a solicitor and a GP.<h4>Type of decision concerned</h4>A decision support arrangement can assist a person in making a decision relating to property and affairs, personal welfare or medical treatments. Here are some examples:<ul><li>Property and affairs: these types of decisions can include the control, management, buying, selling, or mortgaging some or all of a property, possessions, or property rights. It can also include money matters, such as a person’s taxes, trade, contract, and social welfare.</li><li>Personal welfare: these are decisions about accommodation, employment, education, social activities, wellbeing or healthcare (but not decisions about treatment).</li><li>Medical treatments: these are medical treatments preferred by a person can be outlined in an ‘Advance Healthcare Directive (AHD)’ for a future time when the person lacks capacity and can no longer communicate their wishes.</li></ul><h4>Types of ‘assisted-decision arrangements’</h4>The legal framework for assisted-decision arrangements is contained in the Assisted Decision-Making (Capacity) Act 2015 and became operative April 2023. The law plans for various scenarios: a person may need different levels of assistance at different points in time. The arrangements under the legislation can also be limited to a specific type of decision, extended to all decisions, or to just some of them.The following are the types of arrangements that can be put in place under the legislation. They are listed from the least to the most supportive:Decision-making assistance agreements Used when a person needs support in making their own decisions. With this agreement, the person chooses somebody they know and trust to be their decision-making assistant. The decision-making assistant will help the person to get information and assist in understanding so the person can make an informed decision. A decision-making assistance agreement is made online via the Decision Support Service (DSS) who must be sent the agreement via the DSS Portal.Co-decision-making agreements If the person finds it difficult to make certain decisions on their own, they can appoint a co-decision-maker who will make specific decisions jointly with the appointer. This agreement must be registered with the DSS via the DSS Portal.Decision-making representation orders If the person cannot make certain decisions on their own or with somebody else’s support, a Circuit Court judge may be requested to appoint a decision-making representative. The order will be sent to the DSS for registration.Enduring Power of Attorney (EPA) If the person does not currently have issue with their mental capacity but wishes to <a href="https://rip.ie/legal-and-financial-advice/what-happens-if-you-dont-make-a-will-258">make provision</a> in case at some future point they lose capacity, they can create what is known as an EPA in which they appoint a person who is referred to as their ‘attorney’. This is generally a person whom they know well, and the person does not need to be a legal practitioner. The attorney will <a href="https://rip.ie/legal-and-financial-advice/youve-been-named-executor-in-a-will-what-to-do-next-265">make decisions on their behalf </a>when the appointer loses capacity in the future. The process for making an EPA is administered by the DSS and must be made via the DSS website.Advance Healthcare Directive (AHD) This is a document in which a person can indicate the type of medical/surgical treatment they do not want, if at some future point they become unable to make this decision. The AHD does not have to be registered with the DSS. To make an AHD, a person must use the form that is provided by the DSS. The AHD must be signed by two witnesses.<h4>Who can assist?</h4>When a person is planning for a future time when they or a relative may lack capacity, the person should consider who could be a suitable decision supporter and talk to them about it. The person who is planning to create an assisted-decision-making agreement decides who will be the person assisting them in making the decision. The DSS has codes of practice for decision supporters. Not everyone can be a decision supporter (for example if they are minors or have been convicted of certain offences).If a person who wants to create an EPA can’t identify a trusted person to be their attorney, they can contact the DSS for assistance.<h4>General information</h4>The types of agreements and arrangements discussed here are usually made online through the website of the DSS (www.decisionsupportservice.ie). If you are not able to pay the required fees, you can ask the Decision Support Service if they will waive the fees.Registering any type of decision-making agreement with the Decision Support Service involves several steps. Some forms and declarations will have to be signed by authorised witnesses (list available on DSS website). The process of creating a decision support arrangement can take a long time, so it is a good idea to<a href="https://rip.ie/legal-and-financial-advice/what-should-you-consider-when-making-a-will-257"> plan as far in advance as possible</a>.This article is not intended to constitute legal advice. When making any significant life decisions, it is good to talk to a solicitor to get advice. If you have further questions, you should contact a solicitor for personalised legal advice.Áine Hynes is a Senior Counsel, a partner in St. John Solicitors, Chair of the Law Society Task Force on Mental Health Law and Capacity, and a council member of the Law Society.Disclaimer: Please note that this article is for general information purposes only and does not purport to be legal advice. While every care has been taken in its production, no legal responsibility or liability is accepted warranted or implied by the author, publishers or the Law Society of Ireland in respect of any errors, omissions or misstatement. Readers are advised to seek independent professional legal advice before acting on anything in this article.

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Protecting a Family Member’s Interests When Mental Capacity Is at Risk

An<a href="https://rip.ie/legal-and-financial-advice/youve-been-named-executor-in-a-will-what-to-do-next-265"> Executor</a> is the person named in the <a href="https://rip.ie/legal-and-financial-advice/why-make-a-will-254">will</a> of a deceased person, who is expected to carry out the wishes of the deceased after their death. Their responsibilities include dealing with the assets of the estate and distributing them according to the wishes expressed in the will.Very often, probate – the legal process of validating a person’s will – will be needed if there is any real estate involved or financial assets in excess of a certain value.It can be challenging if you are an interested party and the executor is not doing anything with the estate. In this case, and assuming they are not communicating with you, either directly or through the estate solicitors, you should consider retaining legal representation to take legal steps on your behalf to ensure that the administration of the estate progresses.Very often a letter from a solicitor can help. This letter can be written to the executor reminding them of their duty to deal with the administration of the estate. And it can have the desired effect of prompting them into action.However, in some cases an application may have to be made to the court to either remove the executor or to revoke the grant of probate (if one has already been granted and the executor is not finishing the job).<h2>Matters to Consider Before Taking Action</h2>Executor’s Year No legal proceedings can be taken against the executor until 12 months after the date of death. This is known as the ‘Executor’s Year’.Who Can Take Action? Only an interested party can take action to remove an executor. An interested party is a beneficiary of the estate, a creditor, or a co-executor (if there is more than one executor named).Multiple Executors Not all executors have to act. If there is more than one executor appointed, and the executor who is doing nothing has not even started dealing with the estate, the other executor or executors can administer the estate without the executor who is doing nothing. The inactive executor should be invited to reserve or renounce their position before the other executor steps in.Executor Unable to Act If an executor is unable to act due to disability, then there is a procedure to have that executor removed and an alternative appointed.Legal Advice If you end up having to take legal advice to assist with this issue, your solicitor will explore all options with you. Legal action is usually taken as a last resort – and only if the matter cannot be resolved in any other way.<h3>In Summary</h3>If the executor is not fulfilling their role, and you are a beneficiary of the estate or an interested party, there are various steps you can take to get help to address the issue. Seek help from a solicitor and they will assist you through the various steps as outlined above.Ciara O’Callaghan is a solicitor and member of the Law Society’s Probate Committee.<h3>Disclaimer</h3>Please note that this article is for general information purposes only and does not purport to be legal advice. While every care has been taken in its production, no legal responsibility or liability is accepted, warranted, or implied by the author, publishers, or the Law Society of Ireland in respect of any errors, omissions, or misstatement. Readers are advised to seek independent professional legal advice before acting on anything in this article.

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The Executor Named in the Will Is Doing Nothing: What Next?

<h3>What is a Memory Box?</h3>A memory box is a container filled with photos, notes, and mementoes that remind you of someone special. A memory box can provide gentle<a href="https://rip.ie/grief-and-bereavement-support/coping-with-grief-this-christmas-300"> comfort during the grieving process, especially at Christmas.</a> At a time when life may feel uncertain or overwhelming, choosing what to place inside it can <a href="https://rip.ie/grief-and-bereavement-support/when-everything-feels-overwhelming-one-breath-at-a-time-237">bring a sense of grounding and control</a>. Each time added becomes an intentional act of love, creating a personal tribute to the one you're missing. For children and adults alike, it provides a safe and gentle space to <a href="https://rip.ie/grief-and-bereavement-support/honouring-your-childs-memory-finding-ways-to-remember-261">honour loved ones</a>, share stories, and reflect on the impact they had on your life. Over time, the box can become a cherished family keepsake that grows and evolves with your memories. <h3>Steps for Creating a Memory Box</h3><h4>Choosing the Box</h4>Firstly, choose a container that feels special. It can be a wooden box, a decorative tin, or even a strong cardboard box. Consider the size of the box, as it should be large enough to hold the items you want to include. The important thing is that it feels right to you and reflects the personality of your loved one.<h4>Gathering Items</h4>Gather meaningful items such as photographs, letters, jewellery, or small personal belongings that remind you of your loved one. Include anything you feel is special and sparks fond memories.<h4>Including Each Family Member</h4>Invite family members and friends who are also grieving to contribute items. Including everyone guarantees that the box reflects shared memories. This can create a sense of community and can help others to feel included.<h3>How to Use It During the Christmas Season</h3>Place the memory box somewhere visible during the Christmas period, such as near the Christmas tree or communal space. Open it together on special occasions, sharing memories, telling stories, or explaining the significance of each item. The box can serve as a gentle conversation starter, helping children and adults alike express their feelings and remember their loved ones. A Christmas memory box can become a cherished family tradition, offering a way to celebrate, remember, and reflect on loved ones. Making it a yearly ritual helps keep memories alive and brings comfort, connection, and healing to the entire family.Remember, there's no right or wrong way to create a memory box. It's a personal space that can reflect your loved one and the unique bond you shared. Fill it with whatever feels meaningful; there are no rules. Whether you keep your memory box just for yourself or choose to share it with family, it can become a comforting reminder of their life and the memories that bring you closer to them.

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Creating a Memory Box for Christmas: A Family Activity 

<h3>Why Christmas Can Trigger Strong Emotions</h3>The <a href="https://rip.ie/grief-and-bereavement-support/coping-with-grief-this-christmas-300">Christmas period can be a difficult time for those who are missing loved ones.</a> Holiday traditions, family gatherings, and shared meals often highlight their absence. Joyful moments may carry a tinge of sadness as we notice the empty chair, the missing voice, or the celebrations that once included them. Acknowledging these feelings and finding ways to remember those who have passed can help families process grief and feel connected to their loved ones. Honouring a loved one during Christmas through rituals can bring comfort and create meaningful ways to celebrate their life.<h3>10 Ways to Honour a Loved One</h3>Light a remembrance candle.Lighting a <a href="https://shop.rip.ie/ecc/products.php?cat=8">candle</a> in memory of your loved one can be a simple yet powerful act of remembrance. It provides a moment of reflection and connection during the busy season.Hang a personalised ornament.Choose or create an ornament that reminds you of them. Hanging it on the tree each year can be a gentle tribute and a way to feel their presence during the holidays.Prepare their favourite dish.Cook a meal or dessert they loved. Including their favourite foods at your Christmas table can spark memories and allow their spirit to be part of your celebrations.Visit their resting place.Consider visiting your loved one at their place of rest, whether on Christmas Day or during the season. You can leave something meaningful, such as flowers, a candle, or a photograph. This peaceful act can offer comfort and a tangible connection to your loved one.Create a small tribute space at home.Set up a corner with photos, candles, or meaningful objects that honour your loved one. This dedicated space can serve as a reminder of their life and provide a place for quiet reflection.Donate or volunteer in their name.Give back to a charity, community project, or cause that holds meaning for them. Acts of kindness in their memory celebrate their values and help continue their legacy.Share stories.Encourage family and friends to tell stories, recall happy moments, or talk about lessons learned from your loved one. Sharing memories helps keep their spirit alive and strengthens family bonds.Create a photo slideshow or playlist.Compile photos, videos, or <a href="https://rip.ie/grief-and-bereavement-support/remember-me-by-christie-hennessy-a-song-of-comfort-and-remembrance-284">music</a> that remind you of your loved one. Sharing these memories during Christmas can spark joy and gentle reflection.Write them a Christmas letter.<a href="https://rip.ie/grief-and-bereavement-support/building-self-compassion-after-suicide-loss-a-gentle-guide-to-letter-writing-251">Writing letters</a> to your loved one can be a therapeutic way to express your feelings and keep their memory alive. You can write about your day, share memories, or simply express how much you miss them. Start a new tradition in their memory. Introduce a new holiday ritual, like a walk, craft, or special activity. Carrying it on each year creates a gentle way to honour them, celebrate their life, and make new shared memories. <h3>Closing Thoughts </h3>Remember, there is no right or wrong way to honour someone during the holidays. Any form of remembrance, big or small, is meaningful. What matters most is that it brings comfort, keeps memories alive, and allows you to celebrate the love and joy your loved one brought into your life.

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