Making the right decision to face the future with confidence
A diagnosis of dementia is a frightening and confusing time. As dementia progresses, a person’s ability to manage their own affairs will diminish.
This will give rise to the question — how will others decide for me?
Whilst much of the focus will correctly be given over to health and treatment considerations, the need to legally and financially plan should not be underestimated. It is at this very time that thoughts should turn to a person’s affairs before the illness progresses.
If an adult becomes incapable of decision-making, it is widely believed that next of kin can automatically do so on their behalf, but there is no legal basis for such practice. It is necessary, therefore, that a legal framework is put in place to allow for that.
The law currently provides two legal mechanisms for allowing third parties to make decisions on behalf of another suffering from a mental illness.
The first of these is wardship, which arises where a person is at advanced stage dementia and no prior arrangements had been put in place.
Wardship is an outdated, cumbersome process that has not kept pace with modern life. As such it is often seen as a last resort, highlighting the importance of advance planning.
The second mechanism is known as an enduring power of attorney. This is a process whereby a person appoints another individual to legally make decisions on their behalf in the event that they are no longer able to do so. It must be put in place prior to the loss of capacity.
This can be done many years in advance of any such loss but equally can be set up, and very often is, in the early stages of dementia.
An enduring power of attorney will deal with legal and financial decisions and does not extend to healthcare and medical decisions.
In this context, consideration will often be given to an advance healthcare directive or a ‘living will’. This is a document which sets out a person’s decisions on future medical treatment.
These directives do not have legal recognition in Ireland but can be very useful to assist healthcare providers in determining the best treatment for an individual.
The current legal options in Ireland are generally regarded as not being fit for purpose.
They adopt an all-or-nothing approach to an illness that is anything but black and white. It is an illness that fluctuates with time.
Thankfully, the legislature has recognised the shortcomings of the current regime and, as a result, the legal landscape surrounding dementia and mental illness is due to undergo a fundamental overhaul, by virtue of the Assisted Decision Making (Capacity) Bill, 2013.
It has yet to be introduced to law but when it is, it will provide greater options to those facing a diagnosis of dementia.
The bill was before the Oireachtas for discussion again this week but it would appear unlikely that we will see this passed into law before the end of this year. The hope would be that it would happen early in 2016.
The bill proposes to introduce a sliding scale of new assisted decision- making arrangements to enable a person suffering from dementia maintain the ability to make their own decisions for as long as possible.
The decision-making arrangements allow for third parties to assist with these decisions where help is needed, but the bill promotes the idea that, in any decision-making process concerning a person’s affairs, that person should be involved as much as possible.
The two arrangements currently available deal only with the situation where a person has completely lost the ability to manage their own affairs and will not recover. The changes proposed recognise the transient nature of mental illness.
Under the bill, arrangements can be put in place to assist with a temporary loss of capacity which can be set aside on recovery.
The bill does provide decision-making mechanisms where the individual may no longer be able to make the decisions and a third party has to be appointed to do so.
Enduring powers of attorneys will remain valid under the new law to deal with this situation but the outdated ward of court procedure will be abolished.
While the amendments to the current legal position are still subject to discussion and potential amendment, the bill as drafted gives great insight into the direction being taken in how the law will care for those who cannot care for themselves.
Not only will the proposed changes create greater options to those who have received a diagnosis of dementia, but the new law will give clearer guidelines and protections to third parties who are caring for dementia patients.
It is important to speak to your family solicitor having received a diagnosis of dementia.
Putting the necessary structures in place will remove some uncertainties and concerns so as to put people in a better position to focus on the future with the comfort that arrangements are in place to enable others make decisions and assist to the greatest possible extent.
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