It is early days for the Assisted Decision Making (Capacity) Act 2015 (ADMCA). Despite the Act being passed in 2015 it has effectively operated fully since the 26th of April 2023 and therefore it is only now that cases are coming before the courts, and we can expect many more given the substantial changes and uncertainties arising in this area.
In a recent court case, a Decision-Making Representative (DMR), the person appointed to represent
a person who lacked capacity, the Relevant Party (RP) the husband suffering
from dementia, sought leave from the court in relation to the proposed transfer
of the family home from the sole name of the husband into the joint names of the
husband and wife. This is not an uncommon situation where for a variety of reasons a property might be in the name of one spouse and the proposal here was that the property would transfer
into the joint names of both spouses which would facilitate the transfer of the
property to the surviving spouse thereby reducing costs and expense to the estate.
It is a very common feature in Irish law that spouses will transfer family homes into the joint names of both and there is particular reference to this as far back as 1976 in the Family Home Protection
Act 1976 where stamp duty and Land Registry fees are not charged where a family
home is transferred by one spouse into the joint names of both spouses.
In this instance, however, the High Court ruled that because the RP, the spouse who lacked
capacity had not transferred the property into the joint names but made a Will
leaving the property to his wife. This did not infer an intention or give rise
to a situation that would allow the transfer of the house into the joint names
by way of gift at this point.
The ADMCA laysout guiding principles in particular section 8 of the Act. The court outlined the framework within which the DMR can act and the place of the RP within that framework and the oversight role of the DSS (the Decision-Making Service). The court said it must ensure that powers conferred are as limited in scope and duration as is necessary in the circumstances and not simply give
authority to transfer legal interests by way of gifting the RP’s assets to third parties. The court went on to say that convenience is not a necessary reason for making such a transfer even though the applicants were acting in good faith.
The court also added that in this case the Legal Representative of the RP made no submissions
and that this was unsatisfactory and that the role of the legal representation
for someone with no capacity or little capacity went beyond taking instructions
and extended to advising the court if there were any legal issues which the
court should consider in the application.
Practitioners will welcome these guiding principles under section 8 of the Act being
litigated and considered by the High Court and no doubt further cases will add
further to the jurisprudence in this fast-changing environment.
Trish Hynes, Solicitor, Fitzgerald Legal & Advisory LLP, in her role as a Court appointed DMR has significant experience in advocating for individuals who lack capacity. If you or a family member requires assistance in this area, please contact Trish here.