The Gazette 1994

GAZETTE

APRIL 1994

N E W S

Semi nar Highl ights Legal Needs of Men t a l ly I ncapac i t a t ed Persons

A seminar staged by the PR Committee and Family Law/Legal Aid Committees of the Law Society entitled Caring for the Mentally Incapacitated - The Legal Response highlighted the need for changes in the law to meet the legal requirements of mentally incapacitated persons. The seminar, which was held on April 27, was chaired by Moya Quinlan, Chairman of the Family Law/Legal Aid Committee and was addressed by Annie Ryan, President, National Association for the Mentally Handicapped of Ireland; Michael Coote, President, Alzheimer Society of Ireland; John Costello, Solicitor and John Dalton, Registrar of Wards of Court. In her address to the seminar, Annie Ryan outlined the worries faced by parents of a mentally incapacitated child. She said in many cases parents would like to be able to ensure that j after their death a sibling of the incapacitated person would be made his guardian but if the incapacitated person was over 18 years of age this | was not possible. Parents of a person | with mental handicap who was in | long-term residential care also j worried about the kind of care their I son or daughter would receive after their death. "I have often talked with the parents who were desperately trying to set up deals in order to extract binding agreements to look after their children for ever. It is worrying for many parents when they come to the realisation that one cannot buy a secure future for one's handicapped children whatever the category of handicap. As parents we would like to have someone appointed to supervise the care of our mentally incapacitated child after our death and we would like to have some basis in law for that arrangement," she said.

guardianship. At present, in Irish law, guardians cannot be appointed for adults, regardless of their mental age or capacity. The English Law Commission has recommended that some form of adult guardianship should be provided for. "I personally feel that it should be possible to appoint a guardian for an adult under a will or under an enduring power of attorney, subject to certain safeguards." He also suggested that there should be some changes made to the Succession Act, 1965. Currently, under Section 117 of the Act, an application can be made to a court on behalf of a child if a deceased person had failed in his moral duty to make proper provision for the child in a will. There is a time limit of one year for the application. John Costello suggested that discretion should be given to the court to extend the time limit when necessary. At present the Succession Act only deals with a situation where the deceased parent has made a will. Where a parent dies intestate a child cannot apply to the court for increased provision. The Irish Law Reform Commission has recommended that the 1965 Act should be extended to include applications on an intestacy and John Costello said that this would be particularly important for protecting the interests of mentally incapacitated people. John Costello also highlighted that there was no legislation permitting statutory wills in Ireland. Under the English Mental Health Act, 1983 the Court of Protection has power to authorise the execution of a statutory will on behalf of a ward of court, subject to certain safeguards. John Costello suggested that the Irish Law Reform Commission should consider proposals in this area. Mr. Costello also suggested that consideration should be given to the idea of 'living wills'. (Continued overleaf) 153

Michael Coote, President of the Alzheimer Society, described the nature of Alzheimer's disease and why it is called 'the living death'. "Alzheimer's is a degenerative disease of the brain cells which leads on irrevocably to the destruction of all mental and physical functions. In many ways, relatives may suffer more from the effects of Alzheimer's disease than the victims themselves. In many cases legal and financial problems have to be faced and professional advice sought. Major problems arise when the Alzheimer's victim is the breadwinner in the family. There are still many families where the home, insurance policies, motor car, bank account, investments etc., are in the name of one spouse, husband/father is considered to be "of unsound mind" the wife and/or family are placed in a very serious position, legally and financially. Making the victim a ward of court is a lengthy, expensive and impersonal way of doing what the spouse in a family could do far more effectively if the law was changed to make it possible," he said. John Costello, Solicitor and Law Society Council member, identified a number of changes in the law which were required. Noting that in 1989 the Irish Law Reform Commission had recommended a system of enduring powers of attorney, he said: "I understand that at present the Department of Equality & Law Reform is drafting legislation to provide for enduring powers of attorney and I can only urge the Department and the politicians to pass the necessary legislation as soon as possible." usually the husband. Unless this situation is sorted out before the

The second area of law requiring reform, he suggested, was adult