Care of the Elderly: Court Appoints Independent Decision-Making Representatives
The former Wardship system was replaced by the Assisted Decision-Making Capacity Act 2015, which introduced a modern framework for supporting individuals who lack capacity to manage their affairs. The Decision Support Service (DSS) was established to oversee this process, replacing the former Wards of Court Office.
Under the Act, where a person lacks capacity to manage their personal, property or financial affairs, the court may appoint Decision-Making Representatives (DMRs). In many cases, these roles are filled by close family members, often siblings, who assist in managing the individual’s affairs.
However, in a recent Circuit Court decision, the court took the unusual step of appointing independent DMRs from a DSS-approved panel, rather than members of the elderly person’s family.
Background to the case
The case concerned an elderly woman who had suffered from dementia for a number of years. Her brother had been managing her finances and was residing in her home without paying rent. Evidence before the court indicated that she had also paid for a family holiday abroad for him and his family. In addition, a weekly direct debit of €25 had been set up in his favour from her account.
Despite the family’s belief that they were best placed to care for their sister and manage her affairs, the HSE opposed their appointment as DMRs. The HSE argued that, in light of the financial arrangements and lack of transparency, there was a clear conflict of interest and that independent representatives should instead be appointed.
The Court’s decision
The judge accepted that the siblings were well intentioned, but found that they failed to appreciate the extent of the conflict of interest that had arisen. Notably, no formal accounts had been produced to the court despite the brother having managed the woman’s finances for several years. There was also confusion regarding the use of her apartment by family members and other financial matters.
On the evidence, the court held that it would not be appropriate to appoint the siblings as DMRs. The judge found that their prior involvement in her financial affairs, without proper oversight, created a conflict incompatible with the role of a Decision-Making Representative.
Outcome
The court made a final order appointing an independent Decision-Making Representative to manage the woman’s personal and medical affairs, and a separate independent Decision-Making Representative to manage her property and financial affairs. This marked the first occasion on which the Circuit Court appointed DMRs entirely outside the family circle.
Significance
This decision demonstrates the court’s willingness to prioritise the best interests of a vulnerable person over familial expectations, particularly where conflicts of interest arise. It also highlights the importance of transparency and proper financial accountability when managing the affairs of an individual who lacks capacity.
The case underscores the practical application of the Assisted Decision-Making Capacity Act 2015 and the increasing role of the DSS in safeguarding vulnerable adults.
Re: Joan Doe & HSE [2023] Circuit Court, O’Connor J., 8 December 2023
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