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  • 1. Age Action Ireland Protecting Older Adults 26 June 2009 Elder Abuse: Legal Issues Explored Patricia T Rickard-Clarke Law Reform Commissioner
  • 2. Overview Capacity to make decisions Enduring Powers of Attorney Wills Joint Accounts Gifts/Future Needs/Improvident bargain Health Care Decisions/Advance Care Decisions Administration of Estates Conclusion
  • 3. Capacity/Scheme of Mental Capacity Bill 2008 • Presumption of Capacity • Functional Approach – time and issue specific • Definition – statutory/common law • Who can decide – existing/proposed
  • 4. Scheme of the Mental Capacity Bill 2008 Guiding Principles • Presumption of capacity • Law on capacity should be enabling not restrictive –no intervention unless necessary • Not treated as unable to make decision unless all practical steps to assist • Any act or decision -least restrictive of the person’s rights and freedom of action
  • 5. Scheme of the Mental Capacity Bill 2008 Guiding Principles continued • Due regard to right to dignity, bodily integrity, privacy and autonomy • Account must be taken of person’s past and present wishes where ascertainable • Account taken of views of other persons with interest in welfare where known • Any act or decision must be make in the best interests of the person
  • 6. Who can decide – existing/proposed • Ward of Court/Guardianship • Enduring Power of Attorney • Doctrine of Necessity • Informal Decision making
  • 7. Enduring Power of Attorney (EPA) • How created • Selection of attorney • What authority is given – general or limited • Personal care decisions/personal welfare decisions • Registration
  • 8. Enduring Power of Attorney (continued) • Safeguards on registration • Misuse/Abuse • Fiduciary obligations – attorney/financial institution • Gifts and remuneration • Best interest principle/General principle
  • 9. Wills • Whose instructions/undue influence • Requirements • Testamentary Capacity • Attendance at hospital/residential setting • Right to privacy and autonomy
  • 10. Joint Accounts • Intention of transferring in to joint names – Convenience – Is joint account an asset in the estate of a deceased person • Is there an intention to make a gift either at date of opening of joint account or at date of death • Even if no intention to benefit do legal presumptions apply
  • 11. Gifts/Future Needs/Improvident Bargain • Capacity to make gift • Undue influence/independent advice • Who is solicitor acting for • All relevant circumstances/changed circumstances • Provision for future needs
  • 12. Health Care Decisions • Informed consent – valid consent • Adult who lacks capacity • Next of Kin • Doctrine of Necessity • Advance Care Directives – end of life decisions
  • 13. Administration of Estates Older person is a: – personal representative(executor/administrator) – beneficiary of an estate – surviving spouse
  • 14. Conclusion Patricia T Rickard-Clarke June 2009