Ask a solicitor: My father has Alzheimer's so how can we make decisions about the farm?

It sounds like in your case, in the absence of a power of attorney, your father would need a decision-making representative to make decisions for him, writes rural solicitor Angela O'Connor

The court can appoint a decision-making representative for a person who is unable to make certain decisions by themselves.

Dear Angela 

My father was diagnosed with Alzheimer's some years ago. He lives with me on the family farm. My mother died when I was young, so it is just the two of us. Unfortunately, my dad has gotten worse recently, and at times, he is very confused. 

I don’t think it will be long before he needs to go into a nursing home, as I am out on the farm all day and can’t watch him. I’m worried he might get hurt if he wanders off. 

I have tried to have a conversation with my dad about this, but it is difficult, as sometimes he is able to have a proper conversation and other times he is not. My dad doesn’t have a power of attorney in place, as far as I know. I am going to have to make some decisions in the near future about a nursing home and about issues on the farm. 

As my dad's next of kin, am I able to make decisions for him, as he doesn’t seem able to understand and make decisions himself?

Dear Reader 

It is unfortunate there is no power of attorney in place, as this would have permitted the attorney appointed to make decisions on your father’s behalf once he has been assessed to have lost capacity.

You can, however, make an application to become a decision-making representative under the Assisted Decision-Making (Capacity) Act 2015. This act came into force recently and replaces the old Wards of Court system.

The court can appoint a decision-making representative for a person who is unable to make certain decisions by themselves, or they can appoint a co-decision-maker in situations where a person needs support in making decisions. 

It sounds like in your case, your father would need a decision-making representative to make decisions for him. It doesn’t sound like he could be assisted by a co-decision-maker in making decisions.

The first step is to get a report from a medical professional as to your dad's capacity. This report must confirm, among other things, that your father has lost capacity and the reasons for this, ie, any diagnosis and when this was made; and that as a result he is not able to weigh up and retain information and make decisions about his personal welfare or his property and affairs. 

It must also say whether he would be assisted by a co-decision maker or not, as well as whether he is likely to regain capacity in the future.

If the court grants an order, it can list all of the decisions the decision-making representative can make, eg those in relation to the running of the farm, in relation to any fair deal application, etc. The decisions are divided into two groups: those in relation to his property and affairs and those in relation to his personal welfare.

The application is made in the circuit court and comprises some application forms which are supported by an affidavit sworn by the applicant. The application needs to be served on your dad, who would be referred to as the relevant person. 

Your dad would also need to be served with the papers. There would also be other notice parties who would also need to be served with the application. You will need to provide evidence to the court that both your father and any other notice parties have been served with the application. Your dad will also be appointed a solicitor from the Legal Aid Board, who will meet him and report to the court.

The court, on receipt of the application, will list a hearing date, and the court at that hearing will consider whether a decision-making representative should be appointed and what decisions they should be allowed to make.

Angela O'Connor is a solicitor practising in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.

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While every care is taken to ensure accuracy of information contained in this article, solicitor Angela O'Connor does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.