Kevin Healy

An application was made under the Assisted Decision-Making (Capacity) Act 2015 by the children of AB, who had previously been appointed as decision-making representatives (DMRs), for a deed of transfer of their father’s property into joint names of their father — who was the relevant person (RP) — and his spouse.

In making the application, the applicants relied upon provisions of the 2015 Act, along with the rights of the RP under the Constitution, the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities.

The applicants argued that the transfer would allow the property to be automatically passed onto the spouse without the need for taking out a grant in probate. They submitted that the court would not need to alter the will of the RP, but to authorise a deed of transfer to ensure automatic succession. They also submitted that it was provided in the RP’s past will and preference for this transfer to be carried out, but this had not been affected prior to the declaration of his incapacity being made.

Counsel for the applicants noted that the transfer of the family home into joint ownership would be considered a “gift” under the 2015 Act. However, s.43 (1) of the 2015 Act provided that the courts must make an order for the DMRs to be able to “gift” the property. The applicants also argued that the courts are obliged to follow the guiding principles set out in s.8 of the 2015 Act.

They highlighted several points under these principles, noting that an invention must, under s.8(6)(b), “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”.

They also noted that the intervener must, under s.8(6)(e), “act at all times in good faith and for the benefit of the relevant person”.

The applicants argued that there was no principled reason for the court to reject the application made, and that the courts are required to honour the will and preferences of the RP, so long as it is practicable and abides to the guiding principles under S8. The transfer of the property into joint ownership would be an action in good faith and that public policy has recognised that the joint ownership by both spouses is favourable. Under the Family Home Protection Act 1976 and the Finance Act 1990, these transfers are exempt from fees. This supports the protection of the family founded on marriage under Article 41 of the Constitution.

Finally, the applicants noted that any refusal by the courts would be discriminatory and repugnant to the rights of the RP under the Constitution, the ECHR and the UNCRPD.

The RP’s legal representative did not make any submissions, citing their inability to obtain instructions from the RP. As a result, the applicants’ statements about the RP’s will and preferences were unchallenged by the legal representative.

Court decision

In delivering its decision, the court addressed two issues: the specific submissions made by the legal representative, and the court’s role in the application of a RP’s rights.

Specific submissions made by the legal representative

In addressing the specific arguments made by the applicants, O’Connor J made reference to the relevant sections of the 2015 Act. He referred to the High Court cases of In Re Ward of Court (1996) and AC v CUH (2019), where it was highlighted by the court that the capacity of an individual is assessed in both a medical and legal manner. This is done by interpreting a person’s understanding, retention, use of information and communication abilities, which was confirmed by Heslin J in the High Court in EM v MM (2024).

O’Connor J remarked that each case is different and that the capacity of the individual shall be assessed relative to the circumstances. He specifically referenced s.38(9) of the 2015 Act:

The court found that the circumstances must be exceptional for an order to be made by the courts which allows the RP’s property to be disposed by way of gift. The court also noted that a will is a declaratory document, meaning that it cannot be implemented until after the death of the testator.

O’Connor J held that the application made by the applicants was an intrusive intervention that was not required at the time it was made. He held that a deed of transfer would be of no benefit to the RP or his wife at this time.

He also noted that the application was a misleading interpretation of the 2015 Act and, thus, a more appropriate interpretation of the 2015 Act by the courts would be to ensure that it was absolutely necessary to grant the deed of transfer at the time it was made.

O’Connor J noted that there was no real jeopardy to the spouse in not obtaining joint ownership, therefore he did not grant the order.

Court’s role in the application of a RP’s rights

O’ Connor J affirmed that a person’s decision-making abilities does not diminish their constitutional rights, as was established under the cases of In Re Ward of Court (1996) and AC v CUH (2019), and that the duty of a lawyer for a RP who lacks capacity extends beyond directing instructions to protect their rights, as provided for the in 2015 Act for independent legal advice and representation.

The court emphasised that capacity may vary and that lawyers must assess the circumstances of each individual case. O’Connor J held that a lack of ability to communicate does not always mean diminished capacity, therefore, the use of specialists such as speech and language therapists is encouraged by the courts.

O’Connor J noted that public policy does not equate to legislation. Consequently, the 2015 Act does not alter the law relating to the joint ownership of spouses, unless the court has made an order to that effect. Thus, O’Connor J refused the application.

Conclusion

O’Connor J’s judgment makes it clear that the courts will only intervene where it is absolutely necessary and that the 2015 Act must be interpreted in a very strict manner.

O’Connor J noted that the court will only apply the provisions of the 2015 Act and the guiding principles under s.8 of the Act if the circumstances of the case require it.

• Kevin Healy is a solicitor in the litigation department at Comyn Kelleher Tobin LLP.