The Law Reform Commission will today propose that the current ward of court system for people with limited mental capacity be replaced by a guardianship system that would decide whether a person had the capacity to make key decisions.
This would involve the establishment of a Guardianship Board along the lines of the Garda Ombudsman Commission, as well as the appointment of an independent Public Guardian to supervise personal guardians.
The Law Reform Commission's Report on Vulnerable Adults and the Law will be launched by Minister for Health Mary Harney this evening.
The report states that the ward of court system takes an "all or nothing" approach because, when a person is made a ward of court because of dementia or an acquired brain injury, for example, they lose control over all aspects of their financial and personal life.
Under the proposed guardianship system, it could be decided that a personal guardian should be able to manage a limited aspect of a person's affairs but not necessarily everything.
The report also recommends that a new mental capacity law be enacted so that clear rules are set out on when a person has the legal competence to make decisions varying from grocery shopping to healthcare.
It states that anyone over 18 should be presumed to have mental capacity unless the contrary is demonstrated. It says a "functional" approach should be taken, whereby the person's legal capacity to make a decision is assessed in relation to the particular decision at that particular time.
It repeats its position that adults should be free to make what others regard as "poor or eccentric" decisions, provided that they understand the nature of the decision.
The report calls for the repeal of the 1811 Marriage of Lunatics Act, which renders void a marriage by a person who has been made a ward of court.
Certain principles should always be adhered to when decisions are being made on another's behalf, it says. The person's wishes, both past and present, should always be taken into account and the views of their relatives and carers should also be considered.
The Law Reform Commission points out that the consent forms that are signed by relatives for routine healthcare treatments such as dental care have no legal standing "and technically they could be regarded as assaults".
It says this area is "fraught with uncertainty" and there is a need for guidance for medical practitioners.
In the case of consent for routine healthcare treatments it says: "The commission recommends that this should be dealt with by stating in the proposed law that such treatments are lawful if they are clearly in the person's best interests."
It also recommends that major healthcare decisions such as sterilisation, the withdrawal of life support and the donation of organs should be specifically reserved for the High Court.
The 1996 Enduring Powers of Attorney Act, which allows a person to appoint someone to make decisions on their behalf when they lose capacity, is limited to financial matters, but the commission recommends that it be extended to include minor healthcare and treatment decisions.
The commission also recommends that the Minister for Health should appoint a working group to draw up a code of practice on mental capacity and healthcare decisions.
The report also recommends that all types of equity-release scheme be regulated by IFSRA, the financial regulator.
Many of these schemes are aimed at older people but some of them are not classified as financial products and therefore cannot be regulated by IFSRA. These include schemes where the consumer sells part of their home in return for cash.
