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Assisted Decision-Making

A case came before the Circuit Court to determine whether a family home could be transferred into the joint names of spouses where the transferor lacked capacity within the provisions of the Assisted Decision-Making Act, 2015.


A previous Circuit Court order had been made ruling that ‘the relevant person’ (RP), lacked capacity. Under the Act, RP’s children CD and EW (known as DMRs) were appointed ‘decision-makers representatives’ under the 2015 Act. Subsequently, the DMRs applied to the court to approve the transfer of RP’s family home into the joint names of RP and his wife.


The DMRs submitted to the court:

  1. If the property was transferred, it would pass on the death of RP to his spouse automatically without the requirement to take out a grant of probate, and that ‘gifts’ of property are permitted pursuant to section 2 of the Act.

  2. The RP’s past will, and preference was to transfer the property into joint names, but he was not able to effect same before the declaration was made that he lacked capacity. Their evidence was not given under oath in court.

  3. It was also submitted that the court was obliged to give effect to the guiding principles in section 8 of the Act.


The presiding judge took a different view. He considered that a DMR’s powers were limited in scope and duration as necessary having regard to the interests of the RP, in accordance with section 39 of the Act. He stated:


Exceptional circumstances would be required in order for the court to regard it as appropriate to gift RP’s assets rather than ensuring those assets are used for RP’s benefit and for the benefit of those that RP has an obligation to maintain and to provide for”.


The judge further said:

 ‘While the gifting may be to a person who is indicated as a beneficiary in a will, the vista of that approach is not sustainable. A will is a declaratory document and has no force or effect until a person dies. In addition, a schedule of assets and liabilities is furnished before a grant of probate is extracted and creditors may or may not be affected by a lifetime transfer.”

 

The judge observed that the DMRs provided no evidence to show that RP had intended to create a deed of transfer in to joint names. The judge expressed his view in that:


 “The court upholds the right of a person who lacks capacity to still retain control as far as possible over their property and affairs. It is important to note the appointment of a DMR, authorises that person to act as an agent for the RP with oversight of the Decision Support Service… as to the management of the property.”


The judge considered that a more appropriate interpretation of the Act was that the court was mandated to give “very serious consideration” to the transfer of RP’s property if it can be clearly established that it is the RP’s intention and preference.


In the judge’s view, there was no urgent need demonstrated to order the transfer of the family home, and the reason furnished was for convenience rather than demonstrated hardship.


 On considering all the facts the judge refused the application.

 

In the matter of the Assisted Decision-Making (Capacity) Act 2015 and in the matter of AB Circuit Court (Judge John O’Connor) [2024] IECC 16.

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