Eimear Burke and Hannah Unger

In a recent key Circuit Court decision concerning the application of the Assisted Decision-Making Capacity Act 2015 (as amended), the appointment of independent decision-making representatives (DMR) on behalf of a woman with significant care needs was favoured over family members.

The judgment of O’Connor J. (published on 8 December 2023) contains a comprehensive exploration of the Act (which became fully operational last year) and in particular, of the tension between a family’s argument that they are best placed to promote the relevant person’s “will and preference” and the HSE’s view that their conduct suggests otherwise.

The key issues from the judgment are analysed below.

Background

The judgment reflects that the woman with significant care needs (the “Relevant Person”) is in her late 60s with a history of mental illness and suffers from dementia. She is cared for full-time in an acute HSE hospital. Her brother solely manages her financial affairs, permanently resides at her home and does not pay rent.

The Relevant Person also pays a standing order of €25 to her brother on a weekly basis and in June 2022, she contributed to the payment of his costs of a family holiday abroad. The Relevant Person’s family members will in due course inherit from her estate which encompasses her primary residence, an apartment and three pensions.

The Relevant Person’s siblings accepted that whilst she lacked capacity to make decisions regarding her long-term care, accommodation, medical treatment decisions and financial decisions, they believe that representatives from their family were best placed to be appointed as DMRs. The HSE felt otherwise and sought to appoint a DMR from a panel managed by the Decision Support Service (DSS).

The Act

Under the Act, DMRs are appointed by the Circuit Court in limited circumstances where a person is incapable of making decisions with the aid of a co-decision-maker or assisted decision-maker. The Act provides that the Circuit Court has jurisdiction to make declarations as to whether a person lacks capacity to make decisions and whether to appoint a DMR.

Section 38(5) of the Act states as follows:

In examining the above factors, the Court considered the extensive affidavits, exhibits and documents furnished comprising of approximately 1,000 pages and the evidence of the following persons:

• Dr. AB, the Relevant Person’s treating Consultant Psychiatrist
• Mr. John Doe, brother of the Relevant Person
• Ms. BC, the Relevant Person’s Independent Solicitor
• Ms. June Doe, sister of the Relevant Person
• Ms. Joy Doe, sister of the Relevant Person
• Mr. CD, a Senior Mental Health Social Worker

The decision

The Court was satisfied that, pursuant to section 37(1)(b) of the Act, the Relevant Person lacked capacity to make decisions in relation to her personal welfare, property and financial affairs even if the assistance of a suitable person as a co-decision-maker were made available to her.

Having carefully considered the factors outlined in section 38(5) of the Act, the Court was of the view that whilst the siblings were devoted to their sister, they lacked insight into the issues resulting in a conflict of interest.

For example, one of her siblings looked after her financial affairs for a number of years yet no accounts were furnished to the Court, the use of the apartment was not made clear to the Court, the fact that one of the siblings benefitted from at least one family holiday from the Relevant Person’s funds and the fact that there was a €25 standing order in place for one of the siblings were factors which influenced the Court’s view that a conflict of interest arose.

In the Court’s view the family could therefore not objectively deal with financial, medical and care decisions on behalf of their sister.

The Court stated that it did not “come to this decision lightly”, emphasising that it should not impact the relationship between the siblings and their sister, nor affect their involvement in their sister’s life.

The Court requested two nominees from the DSS’s panel of DMRs to be furnished to the Court in respect of personal welfare and medical matters with a view that one be appointed. The Court also requested that two further nominees be provided in respect of property and financial affairs, with one to be appointed.

Summary

The judgment highlights the favourable functional approach to determining capacity (as endorsed by the Act), whereby the interests of those with cognitive impairment are brought to the forefront.

It highlights the Court’s delicate balancing of the issues but ultimate reluctance to appoint members of a family where objective representation may be more appropriate, notwithstanding the good intentions of family members.

• Eimear Burke is a partner, Hannah Unger is an associate and Ciara Long is a paralegal in the public and regulatory team at European law firm Fieldfisher.