Capacity is the ability to do something. Mental Capacity refers to the ability of an individual to make their own decisions = right to self determination.
Irish Law begins with the presumption that everyone has the mental capacity to make decisions for themselves. This presumption can be displaced, which can result in the removal of fundamental human rights e.g. someone else decides where you live; with whom; financial decisions.
Unfortunately, the Law continues to use archaic terms like “unsound mind, “insane” and “lunatic”.
PLAN FOR THE POSSIBILITY OF LOSING YOUR MENTAL CAPACITY?
4,000 under the age of 65 have been diagnosed with early stages of dementia;
10 people per day are diagnosed with dementia in Ireland!
OPTIONS
Enduring Power of Attorney (“EPA”)
Ward of Court
Total funds of person <€50,000 – informal procedure
ENDURING POWER OF ATTORNEY
A written document which facilitates a person (known as “the Donor”) in appointing a person or persons (known as “Attorney”) to manage their affairs in the event of the loss of mental capacity;
Not to be confused with a Power of Attorney;
In 2005, 187 EPA’s were registered and 351 in 2010;
Very often, it is left too late to get one done i.e. capacity has been lost;
Do in tandem with your Will;
Go to your Solicitor. Bring Wills checklist;
Attorney? Someone you trust. Best to have 2 appointed. Be careful if they are also a beneficiary under your Will;
Scope of Attorney = set out what they can and cannot do. General Attorney = they can do anything you can do. May need to restrict them but be careful;
Personal care decisions – they can decide these for you. Maybe they should also be requested to consult someone else. They cannot make medical treatment decisions for you;
Procedure = (1). Execution by Donor and Attorney; (2). Doctors Cert of Capacity; (3). Solicitors Certificate; (4). Notify two people of whom one must be a relation; (5). Storage of document;
EPA becomes effective = when donor looses capacity. EPA must be registered in the Four Courts. Attorney should keep good records for possible future queries;
EPA’s can be revoked;
WARD OF COURT
Where no EPA then Court application, including medical certification of capacity;
Court appoints a “Committee” = person responsible for your affairs;
Person made “Ward of Court”;
Wardship –v- EPA = (a) You don’t choose your committee; (b) Wardship more expensive;
No personal care clauses in Wardship
SUMS LESS THAN 50,000euros
President of High Court can order monies to be given to a family member for the person who has lost mental capacity. Total amount of cash in all financial institutions cannot exceed €50,000. Solicitor needs to make contact with Registrar of Wards of Court.
- a legal information note from Holland Condon Solicitors Kilkenny
