Legal advice: Dad's got dementia - how can I make decisions about the farm?
Before a Capacity Application is made, the applicant must make sure all steps have been taken to provide the relevant person with the support they need.
Dear Stephen,
I have been farming with my father for 15 years in partnership. However, my father is elderly and has been diagnosed with dementia and is now in a care home. I have spoken with his doctor and they were of the view he is not a position to make his own decisions anymore.
I want advice as to my legal options here, as to whether I could potentially manage or deal with his affairs and I would be grateful if you would advise.
Dear Reader,
There is new legislation which has recently been enacted, which is the Assisted Decision-Making Act 2015 and Assisted Decision Making (Amendment) 2022. Under this new legislation, there are several options in respect of aiding people with decision-making, based on how much assistance a person may require depending on their capacity to make certain decisions.
There are essentially three tiers of assistance based on the capacity and needs of the relevant person. Firstly, there is the creation of decision-making assistants, co-decision makers and finally decision-making representatives.
I note you have indicated that the treating doctor does not believe your father has the capacity to make decisions. In the circumstances, you may wish to consider applying to appoint yourself as a decision-making representative. This would entail making an application to the Circuit Court to appoint yourself as a decision-making representation.
If the court declares that the person lacks the capacity to make certain decisions, even with support, it can make a decision-making representation order and appoint a decision-making representative to make those decisions on behalf of the Relevant Person. The declaration of incapacity is kept under review by the court.
A decision-making representation order is an arrangement to appoint a substitute decision-maker. This means that the decision-making representative is the person responsible for making the decisions included in the order. The order will state what functions the decision-making representative will have and what decisions they can make.
The decisions that a decision-making representative may be required to make come under two categories: personal welfare decisions, including accommodation and healthcare needs of the relevant person; and property and affairs decisions, including managing financial and property affairs of the relevant person.
Before a Capacity Application is made, the applicant must make sure all steps have been taken to provide the relevant person with the support they need, as in the application must be the only option left available.
This may include supported decision-making arrangements such as decision-making assistance agreements or co-decision-making agreements or through other informal mechanisms that would allow the relevant person to keep control of those decisions in their own life. The court must be satisfied that a decision-making representation order or decision-making order is the only feasible and practical option remaining before it will consider making such an order.
A Capacity Application may be made when the applicant believes that a relevant person no longer has the capacity to make decisions within an existing decision support arrangement or when a relevant person suddenly and unexpectedly loses the capacity to make decisions about certain matters. The application would have to be supported by medical evidence or a report commenting on whether the relevant person has the capacity to make decisions.
If you are considering making an application, I would advise you to engage a solicitor and they will assist you.
