A voice for the vulnerable

Saturday, 01 March 2014
Karl Dowling discusses the implications of Ireland’s new mental capacity legislation.

On 17 July 2013, the Irish government published provisions designed to reform the rules relating to mental capacity. Practitioners should be acutely aware of the nature and scope of these proposals, as they provide for substantial change to procedures that have been long embedded in their mindset.

Summary of provisions

The reform measures contained within the Assisted Decision-Making (Capacity) Bill 2013 are of an impressive breadth and, in particular, propose to:1

  • Replace the wards of court system with a legal framework to support people in exercising their decision-making capacity so that they can better manage their personal welfare, property and financial affairs.
  • Change the existing law on capacity from the current all-or-nothing approach to a functional one, whereby decision-making capacity is assessed on an issue- and time-specific basis.
  • Provide a range of support, on a continuum of intervention levels (for instance, decision-making assistance, co-decision-making, decision-making representation and informal support) to aid people in maximising their decision-making capability.
  • Provide, in circumstances where it is not possible for a person to exercise their capacity even with support, that another person can be appointed by the court to act as their representative with regard to specified matters.
  • Provide that the Circuit Court will have jurisdiction in this area, giving court-backed protection to the options chosen by people.
  • Clarify the law for carers who take on responsibility for persons who need help in making decisions.
  • Establish an Office of Public Guardian within the Courts Service, with supervisory powers to protect vulnerable persons.
  • Subsume into the Assisted Decision-Making (Capacity) Bill 2013 the provisions in the Powers of Attorney Act 1996 on enduring powers, in order to bring them into line with the general principles and safeguards in the Bill.

In their joint statement announcing the publication of the Assisted Decision-Making (Capacity) Bill 2013, Ministers Alan Shatter and Kathleen Lynch indicated that: ‘The Bill will, at committee stage, incorporate provisions relating to advance care directives, which will be provided by the Department of Health.’ Such provisions could substantially enhance the scope of authority bestowed upon attorneys, thereby vastly improving the utility of the enduring power of attorney procedure.

Altering an existing will in the absence of testamentary capacity

While the Assisted Decision-Making (Capacity) Bill 2013 proposes fundamental change in relation to, inter alia, wards of court and enduring powers of attorney, it also contains a revolutionary proposal that a person who loses capacity may subsequently, and during their lifetime, have their last will and testament altered by the court in certain circumstances.

Such a concept is new to Irish law and practitioners should be aware of such a radical change. Section 108(2) of the Bill provides that:2 Where a person who has made a valid will loses testamentary capacity, the High Court may, acting on its own motion or an application to it by the Public Guardian, alter the will where it is satisfied that exceptional circumstances have arisen since the loss of testamentary capacity and the interests of justice so demand, and a will so altered shall have the same force and effect as if the alteration had been made by that testator in the manner required by the [Succession] Act of 1965.’

Subsection 2 provides for a statutory basis upon which a court can intervene to alter the terms of a testator’s will where ‘exceptional circumstances have arisen since the loss of testamentary capacity and the interests of justice so demand’.

As the law stands, a court’s jurisdiction to interpose its views on the terms of a deceased’s will is limited to certain administrative questions, such as the construction of the terms of a deceased’s will where a constructional ambiguity arose, or the making of provision for a child who is successful in s117 proceedings.

It should be clearly stated that the discretion contained within s108(2) of the Bill does not empower the court or a third party to write a new will for a person incapacitated, but rather bestows upon the court the power to alter the terms of an existing will if it thinks fit to do so.

Practical implications

Under the proposed regime, s108 potentially allows for the entire redesign of a testator’s will during their lifetime where that testator has lost testamentary capacity, albeit only in exceptional circumstances.

Where such circumstances exist and where it appears that the ‘interests of justice so demand’, an application may be made to the proposed Office of the Public Guardian (or the court acting on its own motion).3

Additionally, s108 is unambiguous in bestowing jurisdiction solely upon the High Court to determine such matters. It remains to be seen whether further statutory guidance will present itself as to the form of such applications or whether such applications will be listed before the High Court non-contentious probate list for hearing.

The stance of the Law Reform Commission

Such applications were previously considered by the Law Reform Commission. The Commission, commenting upon the utility of such a provision, stated that ‘[a]mending an existing will on behalf of a person who lacks capacity may allow alteration to reflect a significant change in circumstances.’4

The position of the Law Reform Commission as set out in its 2006 report is essentially the one reflected in s8 of the Assisted Decision-Making (Capacity) Bill 2013.

In making its recommendation, the Law Reform Commission appeared to favour the approach of allowing for an application to be made to court to alter the terms of an existing will of a testator who has lost capacity. The Commission preferred this approach over empowering a third party to make a new statutory will on behalf of a person who has lost capacity, as the Commission harboured fears that: ‘There is a strong possibility that assisting decision-makers may be inclined to unfairly favour their own interests in making applications under a statutory will procedure.’

  • 1Press release issued on 17 July 2013 by the Minister for Justice, Equality and Defence, Alan Shatter TD, and the Minister of State with Responsibility for Disability, Older People, Equality and Mental Health, Kathleen Lynch TD, announcing the publication of the Assisted Decision-Making (Capacity) Bill 2013
  • 2See also the explanatory memorandum to s108 of the Assisted Decision-Making (Capacity) Bill 2013
  • 3However, it remains unclear as to what circumstances would be deemed ‘exceptional’ for the purposes of the section
  • 4Report on Vulnerable Adults and the Law, LRC 83-2006, page 92
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Karl Dowling

Karl Dowling TEP is a Barrister-at-Law.

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