Families are often unsure where to turn, what authority they have, or how to intervene lawfully.
These situations can arise when a person is living with dementia, Alzheimer’s disease, an acquired brain injury, intellectual disability, mental illness, or age-related cognitive decline. Capacity issues may also arise suddenly following a stroke, accident, or serious illness.
In many cases, family members find themselves trying to manage finances, arrange care, sell property, or make medical decisions without having legal authority to do so.
The Assisted Decision-Making (Capacity) Act 2015 (as amended) (“the ADMA”) modernises decision-making capacity law in Ireland.
1. The Presumption of Capacity
A fundamental principle of the Assisted Decision-Making Act is that every adult is presumed to have capacity unless proven otherwise.
Capacity is:
- Decision-specific – A person may have capacity for some decisions but not others.
- Time-specific – Capacity can fluctuate[LM1.1][JB1.2].
A person is considered to lack capacity if they cannot:
- Understand relevant information relating to a decision
- Retain that information long enough to decide
- Use or weigh that information to make a decision
- Communicate their decision (by any means)
Importantly, making an unwise decision does not mean a person lacks capacity.
2. Decision-Making Representative
If a person lacks capacity even with support, the Court may appoint a Decision-Making Representative (commonly referred to as a ‘DMR’) to make specified decisions on their behalf.
It provides families with clear legal authority to:
- Manage property, investment portfolios and finances
- Make welfare decisions
- Deal with banks and service providers
- Arrange care and accommodation
DMR applications require formal Court proceedings, medical evidence and strict procedural compliance.
3. What Should You Do If You’re Concerned About a Loved One?
Step 1: Observe and Document Concerns
Families are often the first to notice changes, such as:
- Memory loss or confusion
- Financial mismanagement
- Vulnerability to undue influence
- Difficulty managing daily living
Keep a record of incidents, dates and professional interactions.
Step 2: Speak With Your Loved One
Where possible, have an open and respectful conversation. The ADMA prioritises the person’s will and preferences. “Will” and “preference” mean what the person would want for themselves. Early dialogue can allow them to put supports in place voluntarily.
Step 3: Seek Medical Assessment
A functional capacity assessment from a GP or relevant specialist may be necessary, particularly if a Decision-Making Representative application is being considered.
Step 4: Check for Existing Arrangements
Determine whether your loved one has already made:
- An Enduring Power of Attorney (EPA)
- An Advance Healthcare Directive
- A Decision-Making Agreement
These documents will significantly affect the next steps.
Step 5: Court Application (If Necessary)
If no suitable arrangement exists and capacity has or is likely to be deemed impaired, an application may be made to the Circuit Court for the appointment of a Decision-Making Representative.
This is often required where:
- There is no Enduring Power of Attorney
- Financial and care decisions must be made urgently, in particular, Nursing Home Support Scheme applications
- Care arrangements are disputed
- Institutions require formal legal authority
4. Practical Tips for Families
- Act early – Planning ahead preserves autonomy
- Prioritise will and preferences i.e. what the person would want for themselves – Not what you think is ‘best’
- Avoid informal control of finances without legal authority
- Watch for undue influence by third parties
- Seek legal advice before making Court applications
5. Common Pitfalls
- Assuming next-of-kin status gives decision-making authority
- Delaying action until a crisis occurs
- Family disagreements about what should happen
- Applying to Court without proper evidence
6. Decision-Making Representative obligations
It extremely important to be aware that where a Decision-Making Representative is authorised to manage investments, this carries significant responsibility.
The DMR should ensure that investments are made in line with appropriate professional advice, reflect the relevant person’s will and preferences (insofar as is possible) and are taken in good faith for their benefit in accordance with the guiding principles.
A DMR will be subject to oversight by the Decision Support Service (the DSS) and must comply with ongoing reporting and accountability obligations.
A DMR should avoid placing funds in speculative or high-risk investments that could expose the relevant person’s assets to unreasonable financial risk.
Given the potential for personal responsibility and scrutiny, people who wish to be appointed DMRs should seek legal, and where appropriate, financial advice when dealing with ongoing investment decisions.
