My mum has dementia, I believe. We have an assessment next month. She has refused to go to solicitor regarding an POA/EPOA as she says she is fine.
I am her only child. What happens if she’s too late to sign anything? What do I do? Can I get her into a home or get home help without one?
Can I do anything myself or talk to anyone, as I have a young child who is getting scared of my mum and I need to protect him?
Ms CB
We are all reluctant to give up our independence. It’s hardly surprising. Much of our upbringing and education is geared to readying us for independent living but that doesn’t mean we should not make provision against the possibility that we may need help one day.
That is precisely what an enduring power of attorney (EPOA) allows for. The critical thing to realise is that drawing up an enduring power of attorney cedes no control whatsoever over your affairs. All it does is provide a backstop in case one is needed. Importantly, it gives you, the person drawing up the power of attorney, control over who should make decisions on your behalf if that time comes and some control over the type of decisions they can make for you.
If you remain alert, able and mentally capable to make your own decisions until you die, then the power of attorney simply languishes unused. You retain full control over all aspects of your life. In your mum’s words, if you are “fine”, it simply does not come into play. And it becomes redundant once you are dead so the powers and people within it have no impact on managing the affairs of your estate – that falls to the executor(s) you have named in your will. Those might be the same people or might not be; that is your choice.
To come into effect a doctor – almost always your GP – will have to agree that you are no longer capable of making decisions for yourself. And if that is the case, you certainly would want someone you have handpicked and trust who knows your likes and dislikes to be making decisions on your behalf or helping you to make those decisions.
This is why I am surprised at some people’s visceral reluctance to even consider drawing up an enduring power of attorney. To me, it seems a no-brainer in terms of living your life as you want to even if you no longer have the awareness to consciously make the decisions for yourself.
Understandably, the most important thing in drawing up an enduring power of attorney in the first place is confirmation that you know what you are doing. Both a doctor and a solicitor are required to state that you understand the process, are acting independently and have the mental capacity to do so.
That means, in your case, assuming you are correct about your mum’s diagnosis, it is already too late to worry about an enduring power of attorney. Your upcoming medical assessment will hopefully confirm it one way or the other.
On that basis, there is no point pressing the case with your mum. It could distress her or make her more resistant to being guided by you, neither of which is productive for either of you in the circumstances.
However, that does not mean you can do nothing. And certainly no one wants a situation where a grandchild is afraid of his own grandmother.
In the (very recent) old days, where there was no co-operation from the person needing care, family or friends would be forced to go through a cumbersome, expensive and often unsatisfying ward of court process. This could be combative and deeply distressing for all those involved, most particularly in this case, your mother. In the meantime, if she was unable to manage her affairs, she could have found them frozen.
Under the ward of court system the president of the High Court would seek two medical opinions on the fitness of a proposed ward to manage their own affairs. Where they were found to need support, the court would then appoint both a “committee” of one or more people to look after the personal and financial affairs of the person being made a ward of court and a case officer for liaison with the court.
There was nothing to say that any of these people should be people known to the person being made a ward of court.
The reason for this is that pretty much every decision involving the ward – from paying bills to receiving medical treatment or even being granted permission to go abroad on holiday – required the specific approval of the court. And of course all this cost money which would generally come from the assets of the ward of court.
Their bank accounts would generally have been closed when the wardship application was granted with the court taking control of the funds. They would also take control of any incoming payments, such as pensions or other welfare payments. And they could sell the person’s home if the court decided they needed to go into residential care.
Although the purpose was the care of the ward, it could be a very impersonal process and one that at times failed to take account of the different levels of capability of the wards. The personal could get caught up in the bureaucracy.
The good news is that wards of court are no more – at least, no more people are being made wards of court and those that are already in that position are having their cases reviewed.
The Assisted Decision-Making (Capacity) Act 2015 was signed into law in December of that year but only came into force in April last year. It covers all sorts of situations where a person needs support in making decisions, including things like enduring powers of attorney and advance healthcare directives where people can outline their preferences for care and, more importantly, instructions about things they do not want like, for instance, being resuscitated if you stop breathing.
The Act established a Decision Support Service, which oversees all the different types of agreement that can be made. Only agreements put together in the correct format and registered or notified to the service have any legal authority.
In your circumstances, there are three levels of decision-making assistance that your mother can avail of, depending on her level of disability or capability. The new Act works on the basis that we all have some capability and that, to the fullest extent possible, we should retain as much control over decisions as we can.
The lowest level of support is where your mum agrees to appoint someone they know and trust as a decision-making assistant in areas where she feels she is having difficulties making decisions on her own. The agreement allows her to set down those decisions where she feels she needs help – whether it is one or more areas of personal care and welfare, or in relation to money matters or property ... whatever.
The person she appoints as her assistant helps her gather the information necessary to make decisions in the areas outlined, explain it to her and help her weigh up the pros and cons before coming to a decision. These agreements can last for up to three years and can be renewed. She can have more than one agreement covering different decisions and more than one assistant on each.
Next comes the co-decision making agreement, where, rather than simply having difficulty making certain decisions, your mum feels she is unable to make some decisions.
Again, she gets to choose who is going to help her and what decisions they will be involved in. The difference here is that where a decision-making assistant guides her to making her own decision, under a co-decision making agreement, the decisions in the areas covered must be made jointly – by your mum and her co-decision maker.
With this level of support, your mum’s capacity will need to be assessed by a doctor, who will have to confirm she is able to enter such an agreement. Spouses and adult children must be informed of the existence of such an agreement and provided with a copy of it.
While a person can have more than one co-decision making agreement, they can have no more than one person helping make decisions under each one.
Finally, you can apply for the appointment of a decision-making representative to manage your mum’s affairs. Like a ward of court, this is a decision that will have to be confirmed by the court on foot of the application and medical reports.
Application for a decision-making representative can be made by a number of people, including your mother, a spouse, civil partner or cohabitant, any adult child, someone already acting under one of the agreements above to support your mother in making decisions or the Decision Support Service itself. It could even be a non-relative such as a friend, although they would need court approval to make the application in the first place.
This is a legal process and both the applicant – most likely you in this case – and the “relevant person”, ie your mum can choose to have legal representation. It is an open process and all the people entitled to bring such an application must also be informed where such an application has been made by someone else.
The first thing the court will do is assess your mum’s capacity to make decisions on the back of medical evidence. It will then decide whether to appoint a decision making representative and what decisions such a person will be making on your mum’s account. The emphasis throughout is on taking into account the wishes of your mum and on the court order been as limited in scale as possible in terms of what decisions it covers.
The court will need to be satisfied that other avenues have been considered, which would be less invasive of a person’s personal affairs – notably the two less intrusive agreement options listed above.
Where possible, the court will appoint someone known to your mum as decision-making representative, in this case quite likely yourself, presuming it is satisfied you have the skills and capacity to carry out the role. If no one is willing or able to act in the role, the court will appoint a representative from a panel compiled by the Decision Support Service. In this case, they would be paid from your mum’s resources for carrying out the functions of the role.
The court could decide to appoint more than one person to the role, in which case it will determine whether they can act independently of each other or whether they must make each decision together.
Either way, whoever is appointed will be limited to acting only in those areas set down in the court order.
Despite the new arrangements under the Assisted Decision-Making (Capacity) Act 2015, there is no doubt that going down the route of securing necessary support for your mum can be contentious where she is adamant that it is not required and even where there is no such refusal it can be distressing and stressful for family. However, it is definitely an improvement on the ward of court process, with the new arrangements offering more options and keeping, at its heart, a commitment to promote the rights and interests of people who may need support with decision-making, with a default position that everyone has some capacity to decide for themselves or have a role in such decisions.
Assuming your suspected diagnosis is confirmed, you should look at triggering one or other of the agreement options.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
- Sign up for Business push alerts and have the best news, analysis and comment delivered directly to your phone
- Find The Irish Times on WhatsApp and stay up to date
- Our Inside Business podcast is published weekly – Find the latest episode here
