The old Wardship system was replaced in 2015 by the Assisted Decision-Making process and the Decision Support Services (DSS) office was set up to take the place of the Wards of Court Office.
In an application under the Act, where a family member lacks any mental capacity to manage their affairs, it is usual for two other family members to be appointed to assist and manage the elderly person’s affairs. The people selected to fill this position are referred to, in somewhat official sounding language, as Decision Making Representatives (DMR).
In a recent Circuit Court case, a novel decision was reached by the judge on an elderly lady’s affairs when two DMRs were appointed from an independent panel arranged by the DSS and not from the family of the lady in question. Essentially, the judge made the decision based on evidence suggesting the siblings of the elderly lady were too invested in her financial affairs, had taken some questionable money gifts from her, and appointing them would be a conflict of interest to say the least.
The lady had suffered from dementia for some years. Her brother managed her finances but lived in her home without paying any rent. In 2022, she had paid towards a holiday abroad for him and his family. The family felt they were best placed to care for their elderly sister and look after her affairs. However, the HSE argued that in view of all the evidence brought before the court, they were not the best candidates to be appointed to manage her affairs and sought instead to have two totally independent persons appointed.
The judge was satisfied that while the siblings were well intentioned towards their sister, they failed to grasp the circumstances in which a conflict of interest had arisen. The judge pointed out that no accounts were presented to the court despite her brother looking after her finances for a number of years. He had also set up a direct debit in his favour for €25 weekly coming from her account. There was confusion over the use of her apartment by a family member and other similar issues.
The judge held, looking at those facts, that it would not be appropriate to appoint the same set of siblings as her DMRs and, in effect, as managers of her estate. There was a clear conflict of interest between appointing them given how they had over several years intermeddled in her affairs.
The judge made a final order appointing an independent DMR to look after her personal and medical issues and appointing another DMR to look after her property and financial affairs. This was the first time the court went outside the family members themselves in appointing a DMR.
The best interests of the vulnerable lady with dementia were given the highest priority by the court using the still relatively new provisions of the Assisted Decision-Making Capacity Act 2015.
Re: Joan Doe & HSE [2023] Circuit Court (His. Hon. Judge O’ Connor) 8 December2023.