About this case:

• Citation:
  [2024] IECC 16
• Judgment:
  External link
• Court:
  Circuit Court

Delivering the lead judgment for the Circuit Court, His Honour Judge John O’Connor clarified: “Lawyers should be able to assess their instructions in light of the functional assessment in s.3 and the guiding principles in s.8 of the ADMCA. In this case it is clear from the evidence of the capacity report and accepted by all parties and the court, that the RP lacks capacity to effect a deed of transfer. The fact that the RP smiled and squeezed the hand of the advocate does not alter the functional assessment that the RP was not able to assess the situation functionally as outlined in s.3 of the ADMCA.”

Background

In 2024, the Circuit Court made an order declaring that AB, the ‘relevant person’ (RP), lacked capacity. RP’s children CD and EW were appointed as the ‘decision-making representatives’ (DMRs) pursuant to the Assisted Decision-Making (Capacity) Act 2015 (ADMCA).

The DMRs subsequently applied to the Circuit Court to approve a transfer of the RP’s family home into the joint names of the RP and his wife.

Submissions 

The DMRs submitted that if the property was transferred, same would pass on the death of the RP to his spouse automatically without the requirement to take out a grant of probate, and that ‘gifts’ of property are permitted pursuant to s.2 ADMCA.

The DMRs submitted inter alia that the RP’s past will and preference was to transfer the property, but he was not able to effect same before the declaration was made that he lacked capacity. Their evidence was not given under oath in court.

It was also submitted that the court was obliged to give effect to the guiding principles in s.8 ADMCA, which states inter alia that there shall be no intervention in respect of a RP unless it is necessary to do so having regard to their individual circumstances, and that any intervention shall “have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy, and control over his or her financial affairs and property” and shall “give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable”.

The Circuit Court

Judge John O’Connor considered that a DMR’s powers were limited in scope and duration as necessary having regard to the interests of the RP, in accordance with s.39 ADMCA. 

“Exceptional circumstances would be required in order for the court to regard it as appropriate to gift RP’s assets rather than ensuring those assets are used for RP’s benefit and for the benefit of those that a RP has an obligation to maintain and to provide for”, the judge noted.

He highlighted: “While the gifting may be to a person who is indicated as a beneficiary in a will, the vista of that approach is not sustainable. A will is a declaratory document and has no force or effect until a person dies. In addition, a schedule of assets and liabilities is furnished before a grant of probate is extracted and creditors may or may not be affected by a lifetime transfer.”

The court set out that no evidence had been tendered by the DMRs to suggest that RP intended to create a deed of transfer, and this would be of no benefit to him nor would it place his wife in a better position than already provided for.

Judge O’Connor opined: “The court upholds the right of a person who lacks capacity to still retain control as far as possible over their property and affairs. It is important to note the appointment of a DMR, appoints that person to act as an agent for the RP with oversight of the Decision Support Service… as to the management of the property.”

The court considered that a more appropriate interpretation of the ADMCA was that the court was mandated to give “very serious consideration” to the transfer of RP’s property if it can be clearly established that it is the RP’s will and preference.

In Judge O’Connor’s view, there was no urgent need demonstrated for a transfer of the family home and the reason furnished was for convenience rather than demonstrated hardship. 

The judge explained that anticipated delays in the Probate Office in furnishing a grant of probate or administration “are not a valid reason for overriding legislation enacted by the Oireachtas” and that in the event of an emergency, an application for a grant of administration could be made to the Circuit and High Courts under s.27(4) of the Succession Act 1965 where deemed necessary.

The court set out that whether a person has decision-making ability does not in any way diminish their constitutional rights and that capacity has to be construed functionally as per s.3 ADMCA, stating that the starting point is to acknowledge that a person’s capacity can vary from day to day depending on their condition or the legal issue with which they are presented.

The court continued: “Lawyers should be able to assess their instructions in light of the functional assessment in s.3 and the guiding principles in s.8 of the ADMCA… The fact that the RP smiled and squeezed the hand of the advocate does not alter the functional assessment that the RP was not able to assess the situation functionally as outlined in s.3 of the ADMCA.”

Judge O’Connor opined: “Communication difficulties do not of themselves equate with reduced decisionmaking capacity. Some RPs can benefit from the expertise of a specialist such as a speech and language therapist and also an advocate in their communication.”

Finding that the assistance by the advocate in this case was not sufficient to convince the court that the will and preference of the RP was ascertainable in respect of the transfer of the family home, the judge emphasised: “Even where instructions cannot be obtained, the lawyer should investigate the application, for example, by examination or cross-examination of a witness and/or advising the Court if the rights of the RP are in fact being protected.”

The court concluded that there was nothing to suggest that the Oireachtas intended to alter the law to enable a family home to be transferred into joint names of both spouses notwithstanding the registered owner lacking capacity. In this regard, the court expected that clear wording would have been used in the ADMCA, but no such words were used.

Conclusion

Accordingly, the Circuit Court refused the application.

In the matter of the Assisted Decision-Making (Capacity) Act 2015 and in the matter of AB [2024] IECC 16