2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
There is a general recognition that capacity is poorly defined in Irish law and that there has long been a need for a clearer definition and a more flexible approach (as opposed to the all-or-nothing nature of wardship as outlined below). Following the publication of a report by the Law Reform Commission and extensive public consultation, new draft legislation was due to be published in early 2009. However publication has been delayed. The legislation, when it arrives, is likely to introduce a statutory definition of capacity and a functional approach which would recognise that a person may have capacity in relation to certain decisions and not others. The original draft legislation also contained proposals for the establishment of an Office of Public Guardian which would replace the Office of Wards of Court and exercise an oversight function in cases of incapacity. Due to the delay in publication of the Draft Bill, this paper focuses on the current situation while noting that significant change is likely in the near future.
Proxy decision making
Guardianship, or wardship as it is referred to in Ireland, is governed by laws which are contained in the Lunacy Regulation (Ireland) Act of 1871 and also the Rules of the Superior Courts (RSC). The term "lunatic" is frequently referred to in the 1871 legislation and is understood to mean "any person found by inquisition idiot, lunatic or of unsound mind and incapable of managing himself or his affairs". However, this term is avoided as far as possible in general usage. The person subject to guardianship is referred to as the ward.
Conditions for the appointment of a guardian
A guardian may be appointed for a person who has been declared to be of unsound mind and incapable of managing his/her person or property.
How wardship is arranged
There are different possibilities for arranging wardship which depend on the situation of the person for whom the measure is intended. If, for example, the need for wardship is urgent or there is a need to minimise costs, the Judge (the President of the High Court) can arrange for a medical visitor to examine a person at the request of a solicitor who has expressed concern for the person's welfare. The report made by the medical visitor is then considered as a petition and the Judge can order in open court that the person be taken into wardship.
If the proposed ward has an estate of not over £5,000 or his/her annual income does not exceed £300 p.a., the procedure is governed by S. 68 of the 1871 Act and Order 67 Rules 21-30 apply. For a proposed ward, who is weak of mind but only temporarily incapacitated, this would be governed by S.103 of the 1871 Act and the Order 67 Rules 31-37 would apply. However, according to John Costello (1993), in the majority of cases the following procedure applies.
- A social worker or member of the proposed ward's family contacts a solicitor with a view to discussing wardship.
- Two medical reports are then obtained from two different medical practitioners (usually on oath) which should specify the nature of the medical condition and the probable duration of the disorder. It should also be mentioned in the reports that the proposed ward is incapable of managing his/her affairs as these reports will be used to support a petition for an inquiry to be set up into the soundness or unsoundness of mind of the person in question.
- A petition is then made, usually by the next of kin, but this is not obligatory. Anybody could be a petitioner, even a stranger. This is known as a section 15 petition, as the procedure in S.15 of the 1871 Act is followed in these applications by the Judge. The petition should include personal details about the proposed ward (e.g. name, address, marital status, religion and next of kin), information about the nature and amount of his/her property and debts, and information about the petitioner who must swear, in addition, that the contents of the petition are true.
- When the petition has been lodged with the Wards of Court Office and the Registrar, the Judge may then make an inquiry order on the basis of the petition and doctors' reports. The Registrar's medical visitor examines the proposed ward and makes a confidential report.
- The petition is then served by a solicitor to the proposed ward in which it is stated that an inquiry has been set up to determine whether s/he is of unsound mind and incapable of managing his/her person and property. The person is invited to make any objections or to request that the inquiry take place before a jury. If the person makes no objection to the inquiry, the Judge usually declares him/her to be a ward of Court.
- Once the person has been made a ward of Court, the petitioner is required to draw up a statement of facts which contains information about:
- the ward's situation
- the nature of his/her mental illness
- the person who should be appointed committee (guardian) of his/her person and estate
- the value of the ward's property
- the amount of his/her gross and net income
- present and future maintenance costs
- details of any debts belonging to the ward
- the location of the ward's will (if one was made)
Who can be a guardian
The power to decide on the person’s behalf may be vested in the court or in a person appointed by the court. (need further information such as if priority is given to spouses etc.).
The duties and responsibilities of the guardian
The guardian of a ward of court is responsible for his/her financial affairs and for this reason the system is not suitable for cases where the personal welfare of the person needs protection.
How are the financial affairs of the ward of Court handled
A committee of the person and estate of the ward is appointed by the Judge. The committee must lodge the proceeds of all bank accounts and building society accounts with the Accountants Office, which then controls the funds and invests them as directed by the Wards of Court. If the committee of the estate has been authorised to receive income or rent on behalf of the ward, s/he must submit an account of this to the Registrar. Income tax (returns and payments) can in certain cases be handled by an accountant.
The committee can obtain authorisation to sell property. This is often permitted in cases where the ward's house is unoccupied, which can result in difficulties insuring it and increase the likelihood of it depreciating in value. If the ward owns agricultural land or property for which s/he is already receiving a rent, the committee is usually permitted to carry on letting it. If it is decided that it is necessary to sell the land or property of the Ward, the Registrar will have it valued, fix a minimum price and it can then be sold.
Measures to protect the ward against misuse of power
Information needed (e.g. the obligation to send yearly accounts or to have special permission to carry out certain transactions).
Duration of wardship
The right to appeal
When the inquiry is set up to determine whether the person is of unsound mind and incapable of managing his/her person and property, s/he is invited to make any objections or to request that the inquiry take place before a jury. If the no objection to the inquiry is made, the Judge usually declares him/her to be a ward of Court.
Continuing powers of attorney
The conditions for setting up a continuing power of attorney
Under the Powers of Attorney Act of 1996, a power of attorney can be made which continues to be valid even when a person is no longer legally competent. Before this law came into force, a power of attorney was automatically revoked as soon as a person became mentally incapable.
How continuing powers of attorney are arranged
In order to make an enduring power of attorney, statements must be provided:
- that the donor (i.e. the person writing the power of attorney) has read the information concerning the creation of a power of attorney or has had the information read to him/her (to be provided by the donor);
- that the donor had mental capacity at the time of writing it and understands the consequences of giving power to an attorney (to be provided by a registered medical practitioner);
- that the attorney understands the duties and obligations involved in being an attorney, as well as the requirements of registration (to be provided by the attorney); and
- that the donor understood the effect of creating the power of attorney and that the document was not executed as a result of fraud or undue pressure (to be provided by a solicitor).
An enduring power of attorney (EPA) only comes into force once it has been registered. As soon as the attorney has reason to believe that the donor is or is becoming mentally incapable, s/he must make an application to the registration in the Wards of Court Office. This can be supported by a statement (signed by a registered medical practitioner) that the donor is or is becoming incapable by reason of a mental condition of managing and administering his or her own property and affairs. The donor must then be informed, as should a number of people, e.g. the spouse, children, parents, brothers and sisters, grandchildren etc. The attorney can request that certain people should not be informed on the grounds that it would be undesirable or impracticable or that it would serve no useful purpose (see also the right to appeal).
Who can be an attorney
The donor can appoint one or more attorneys and can specify that they act jointly. An attorney must be at least 18 years of age and not have been bankrupt or convicted of an offence involving fraud or dishonesty or an offence against the person or property of the donor. The attorney cannot be the owner of a nursing home where the donor resides or an employee or agent of the owner, unless this person is a spouse, parent, child or sibling of the donor.
If the donor and attorney are married, the enduring power of attorney will be invalidated or cease to be in force if:
- subsequently the marriage is annulled or a divorce granted;
- a separation is granted to either spouse;
- there is a written agreement to separate; or
- there is a protection order or safety order made against the attorney at the request of the donor.
The donor can give power to one or more specified persons to take over from the appointed attorney in case of the latter's death.
The duties and responsibilities of the attorney
The Powers of Attorney Act of 1996 states that the attorney may act on behalf of the donor in relation to all or a specified part of his/her property or affairs, subject to the restrictions and conditions specified by the donor. Unless otherwise stipulated in the document, the attorney can act for his/her own benefit or that of other people to the extent that the donor might be expected to be responsible for providing for those needs. The attorney can also dispose of the property of the donor by making gifts of a seasonal nature or on the occasion of a birth, anniversary or marriage to relatives or other people connected to the donor. Gifts can be made to charities to which the donor previously contributed or might be expected to contribute to. In all cases, the gifts should be reasonable and in keeping with the circumstances and extent of the donor's assets.
An enduring power of attorney also covers personal care decisions. The attorney can, for example, make decisions such as where and with whom the person should live and whether s/he should have contact with certain people. Personal care decisions must be made in the best interests of the donor. The following guidelines are provided as to how to decide on the donor's best interests.
- The attorney should take into consideration, as far as is ascertainable, the past and present wishes and feelings of the donor, as well as factors which the donor would have considered (had he or she been able to do so).
- The attorney should allow, encourage and facilitate the participation of the donor in decisions as far as possible.
- The attorney should consult certain people in order to find out their views as to the donor's wishes and feelings and what would, in their opinion, be in the donor's best interests. These people would include anyone named by the donor as someone to be contacted on particular matters and anyone engaged in caring for the donor or interested in his/her welfare (e.g. the spouse, relatives, friends, etc.)
- The attorney should consider whether the proposed measures could be achieved in a less restrictive manner.
However, the attorney has no authority to make healthcare decisions, i.e. to authorise medical treatment or operations (Costello, 1998).
The right to appeal
The donor may object to the application for registration of the EPA. Under the Act, the donor has five weeks from receipt of notice in which to appeal to the Wards of Court Office. S/he could object that the enduring power of attorney was not valid or no longer valid, that s/he was not mentally incapable or becoming so, that the attorney was in some way unsuitable for the post or that the enduring power of attorney was written under pressure. The Court may decide to cancel the registration of the EPA.
The Nursing Homes Support Scheme Act S2009 introduced elements of the proposed new approach to capacity within a specific limited context. It is the first piece of Irish legislation to enshrine the presumption of capacity and to adopt a functional approach to capacity (i.e. capacity is assessed only in relation to a person’s ability to make a particular decision).
The purpose of the Act is to establish a scheme of state support for nursing home care, including allowing the state to fund nursing home care through a loan secured by a charge on the applicant’s property, repayable on the death of the applicant OR the property of the person for whom the measure is intended (referred to hereafter as “the relevant person”), repayable on his/her death. Part 4 of the Act allows for the Circuit Court to appoint a care representative in the case of a person not having full capacity, for the purposes of making an application for ancillary State support and giving the necessary consent to the creation of the charge. (The appointment of a care representative is only necessary in situations where there is no Enduring Power of Attorney or the person concerned is not already a Ward of Court.)
Conditions for the appointment of a care representative
If the court is satisfied that the relevant person concerned is incapable for the time being of making a decision to which this section applies, and the court determines that it is in the best interests of the relevant person concerned, having regard to the expressed wishes, if known, of the relevant person concerned, and the circumstances of the relevant person concerned, the court may appoint a person to be a care representative. The court may also appoint more than one care representatives in which case they act jointly unless otherwise specified by the court.
Who can be a care representative
People who may apply to be care representatives, in order of descending priority, are as follows: where the person is a member of a couple, the other member of the couple; a parent of the relevant person; a child of the relevant person; a brother or sister (whole or half-blood of the relevant person); a niece or nephew of the relevant person; a grandchild of the relevant person; a grandparent of the relevant person; an aunt or uncle of the relevant person; a person who appears to the court to have a good and sufficient interest in the welfare of the relevant person and who is not either the proprietor of a nursing home in which the relevant person resides or is likely to reside, or one of the registered medical practitioners who prepared reports on the person’s lack of capacity.
A person may not be a care representative if they have been adjudicated bankrupt (unless the bankruptcy has been discharged or annulled), convicted of an offence involving fraud or dishonesty, or convicted of an offence against the person or property of the person concerned.
The duties and responsibilities of care representatives
The powers of the care representative are strictly limited to dealing with matters relating to the application for state support and the creation of the charge on property.
Measures to protect the relevant person against misuse of power
The court has the power to request accounts and can remove and replace a care representative.
Capacity in specific domains
Marriage and divorce
The issue of whether a person with a mental illness can enter into a marriage was the subject of several court cases in the 1870s and 1880s (British Medical Association/the Law Society, 1995). The distinction was made between understanding the marriage ceremony and understanding what is involved in the marriage. If one party to the marriage is unable to consent the marriage can be declared either void or voidable. A void marriage is one that in the eyes of the law never took place, whereas a voidable marriage is one which can be annulled at the request of either party. A person who has been made a ward of court cannot marry.
If anyone considers that a person lacks the capacity to marry, they may lodge their objection in writing with any registrar (Inclusion Ireland, 2010). It is then the duty of the registrar to investigate the issue and decide whether the marriage should take place.
A person lacking mental capacity does not automatically lose the right to vote. There is however, a definition of legal incapacity to vote which was defined in a court case in 1874 (Stowe v Joliffe) (British Medical Association/the Law Society, 1995). According to the ruling from this case, there is "some quality inherent in a person, which either at common law, or by statute, deprives him of the status of Parliamentary elector". Although doctors and lawyers rarely become involved in cases to prevent a person lacking mental capacity voting, this definition is still valid today. Common law also applies in relation to mental capacity. In the Oakhampton and Robin's case (1791) it was declared that a "lunatic" could vote but only during a lucid interval. Although the term is offensive nowadays, the provisions of this case were confirmed in subsequent cases and are still applicable today for people suffering from a mental disorder. If the presiding officer at the polling station considers that a person lacks the capacity to vote, s/he may refuse that person access to vote (Inclusion Ireland, 2010).
As mental incapacity is assessed on the basis of the decision to be made, a person might be capable of making one kind of contractual agreement (e.g. to arrange for the daily delivery of a newspaper) but not another (e.g. a hire purchase agreement for a new car). In determining whether an agreement or contract should be rendered void, the courts have to determine whether the person was capable or understanding the nature and effects of the specific contract. The courts must also protect the third party involved in the agreement. This person might or might not have been aware that the person with whom s/he made the agreement was lacking mental capacity. Consequently, if the third party was or should have been aware of the person's mental incapacity, the contract would be voidable. Otherwise the person lacking mental capacity would be bound by the terms of the agreement. (Source: BMA/Law Society, 1995)
One of the criteria for a will to be considered valid is that the person who made it was of sound mind. Consequently, a person who has been made a ward of court, having been declared of unsound mind and incapable of managing his/her person or property, would presumably not be able to make a valid will. A solicitor cannot aid a person to draw up a will, if s/he is not satisfied that the person fully understands what is involved. It is not possible to draw up a statutory document, i.e. a will drawn up by the Court on behalf of an incapacitated person as can be done in England (Costello, 1998).
People in Ireland who are charged with a criminal offence and who are suffering from a mental disorder are dealt with under the Criminal Law (Insanity) Act 2006. This law came into effect on 1 June 2006.
The question of the mental state of someone in Ireland charged with a crime may arise at two different stages - at the start of the trial and at the decision on guilt. If a person is suffering from a mental disorder, they may be considered unfit to be tried at the start of the trial. In that case, no trial goes ahead. If a trial is held and the person is considered to have actually committed the offence but was insane at the time, it is possible for a verdict of not guilty by reason of insanity to be reached. In murder cases, the concept of diminished responsibility may be used to substitute a verdict of manslaughter.
A mental disorder in Irish law is defined as including mental illness, mental disability, dementia or any disease of the mind but does not include intoxication (drunkenness).
Fit or unfit to be tried
The decision on whether or not a person is fit to be tried is made by a judge. If the person cannot understand the charge or is unable to instruct a legal team, challenge jurors or follow the evidence, then they may be considered unfit to be tried.
This finding (that is that someone is considered unfit to be tried) is not a decision on the alleged criminal activity. If someone is found to be unfit to be tried, then the trial is postponed. The judge then decides what happens next. For example, the person may be committed to a psychiatric hospital or unit if they are considered to be suffering from a mental disorder and are in need of in-patient treatment under the terms of the Mental Health Act, 2001. Alternatively, the person may be sent for out-patient psychiatric care. The person may be committed to a psychiatric hospital or unit for 14 days in order to establish whether or not they should be sent for treatment. The person may appeal against a committal order.
If the judge considers that there is a reasonable doubt that the person committed the alleged crime, the person may be acquitted. The Director of Public Prosecutions may appeal against a decision that a person is unfit to be tried.
Not guilty by reason of insanity
If someone is considered to have actually committed the offence but was insane at the time, the verdict may be not guilty by reason of insanity. According to common law and for the purposes of determining criminal responsibility, "insane" is understood to mean that the person:
- did not know the nature and quality of the act;
- did not know that what he or she was doing was legally wrong; or
- was unable to refrain from committing the act.
This verdict is commonly known as "guilty but insane". This decision is made by a jury. If this verdict is reached, the judge may order that the person be committed to a psychiatric hospital or unit in broadly the same way as applies in the case of being unfit to be tried.
Diminished responsibility in murder cases
If someone is charged with murder, the verdict of not guilty by reason of insanity is one possible verdict. The Criminal Law (Insanity) Act 2006 provides for the concept of diminished responsibility in murder cases. A conviction for murder in Ireland brings an automatic life sentence. In other crimes, the judge has discretion in relation to sentencing and so can take into account any diminished responsibility which may exist. If someone charged with murder successfully pleads diminished responsibility, then the verdict is manslaughter. The judge can then sentence the person to any length of time in prison.
Mental Health Review Board
The Mental Health (Criminal Law) Review Board's main function is to review the detention of those found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by order of a court. The Review Board also has responsibility for people who have been convicted of offences and who become mentally ill while serving their sentences. The Review Board must have regard to the welfare and safety of the person whose detention it reviews and to the public interest. It may assign a legal representative to the person unless the person proposes to engage one.
The Board is composed of a legal chairperson and a number of other people, at least one of whom must be a consultant psychiatrist. It is obliged to review each detention at least once every six months.
- British Medical Association/the Law Society (1995), Assessment of Mental Capacity; guidance for doctors and lawyers, British Medical Association
- Costello, J. (1993), Wards of Court – a general guideline of the procedures involved, Gazette 1993
- Costello, J. (1998), Legal Services and Older People (speech given at the national council on ageing and older people conference on 5 November 1998)
- Costello, J., (1998), Legal Issues and the Elderly
- Department of Health (1995), White Paper; A New Mental Health Act, The Stationery Office, Dublin
- Inclusion Ireland (2010), Information sheets on marriage and voting. Accessed online on 7 May 2010 at: http://www.inclusionireland.ie/publications.asp
Last Updated: Wednesday 28 March 2012