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

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.

What is ‘capacity’?

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:

• understand the information they need to make a decision,
• remember the information long enough to make a choice,
• use the information to weigh up options, or
• communicate their decision.

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.

Type of decision concerned

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:

• 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.
• Personal welfare: these are decisions about accommodation, employment, education, social activities, wellbeing or healthcare (but not decisions about treatment).
• 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.

Types of ‘assisted-decision arrangements’

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 make provision 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 make decisions on their behalf 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.

Who can assist?

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.

General information

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 plan as far in advance as possible.

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.