Mark Felton’s Article on Assisted Decision-Making (Capacity) Bill 2013

Implications in Practice for Enduring Powers of Attorney and Wards of Court

It has been anticipated for some time that the new mental Capacity bill when it was eventually issued was going to incorporate provisions for the overhauling of the Wards of Court System as we have known it.

The Bill which is called the Assisted Decision-Making (Capacity Bill) 2013 has now been issued and it does incorporate proposals for changes to both the Wardship system and the Enduring Power of Attorney system that we have historically been working with.

I have been asked to review the Bill and to comment on the proposed changes in so far as they relate to Enduring Powers of Attorney and Wardships and to suggest how those changes may impact on us in practice.

In doing so I am conscious of the fact that there has already been much commentary on the provisions of the Bill generally and that many bodies such for example as the Centre for Disability at NUIG, The Law Society and others are making additional submissions to the Department of Justice on where certain aspects of the Bill should be altered. I do not, in the main, propose to cloud my current discussion with reference to changes that may have been proposed as unless they are implemented the bill will stay as drafted.

I will turn specifically to the sections of the Bill dealing with Wards of Court and Enduring Powers of Attorneys shortly. Firstly, and in order to give some context to what is proposed I want to draw your attention to the provisions in Part 8 of the Bill. These are the provisions regarding the creation of the Office of the Public Guardian. This is intended to take over from and replace the Wards of Court office.

That part of the bill brings in a range of new measures that will impact on Enduring Powers of Attorneys and Wardship issues and it would be important to be familiar with same in the context of advising clients. There are many provisions in the Bill as regards the setting up of the Office of the Public Guardian and how it is intended to work, as well as the authority it will have in relation to the various new forms of assisted decision making arrangements that are provided for.

I only propose to refer to a few of the specific sections that are of relevance to Attorneys under Enduring Powers of Attorneys

For example, Section 56 (j) provides for the Public Guardian to “receive and consider reports from;-

(i) Co- decision makers, decision making representatives or attorneys for relevant persons … “

S56 (l) provides for the Public Guardian to receive and consider representations, including complaints in relation to the manner in which a decision making assistant, co-decision maker, decision making representative or attorney for a relevant person is performing his or her functions

And S56 (m) allows the Public Guardian to act on complaints which the guardian believes have substance and to make an application to the court, (which is defined as meaning the Circuit Court), or High Court under the act.

I should also point out that a “relevant person” in the context of the bill is defined as being:-

“(a) a person whose capacity is being called into question or may shortly be called into question in respect of one or more than one matter, and includes such a person who is-

(i) An appointer, or

(ii) the donor of an enduring power of attorney

(b) a person who lacks capacity in respect of one or more than one matter in accordance with the provisions of this Act, or

(c) a person who falls within paragraphs (a) and (b) at the same time but in respect of different matters”

Part 6 of the Bill deals specifically with Enduring Powers of Attorney.

This part of the Bill will affect all existing Enduring Powers of Attorney that are not already registered under S10 of the 1996 Act by the time the Bill is enacted.

S39 (4) of the Bill makes it clear that “ No Enduring Power of Attorney shall be created under the Act of 1996 from the commencement of this section and any instrument purporting to create such a power shall, to the extent that it so , be void.”

In place of the provisions of the 1996 Act regarding the creating of Enduring Powers of Attorney the Bill provides a revised process for the creation. This is set out at Section 40 of the Bill. It provides that

“a Power of Attorney is an Enduring Power of Attorney within the meaning of this Part-

(a) if the instrument creating the power contains a statement by the donor to the effect that the donor intends the power to be effective at any subsequent

time when the donor lacks capacity or shortly may lack-

(i) capacity to look after his or her personal welfare

(ii) capacity to manage his or her property and affairs, or

(iii) both capacity to look after his or her personal welfare and capacity to manage his or her property and affairs

and

(b) the enduring power is in compliance with the provisions made under this section and regulations made under this section. “

This compares with the provisions of the S 5 of the 1996 Act which you will all be familiar with as regards the setting up of an Enduring Power of Attorney which states

“(1) A power of attorney is an enduring power within the meaning of this Act if the instrument creating the power contains a statement by the donor to the effect that the donor intends the power to be effective during any subsequent mental incapacity of the donor and complies with the provisions of this section and regulations made thereunder.”

The new provisions acknowledge that whilst it may be the case that someone is losing their ability to manage their personal affairs, they may still be able to manage their personal welfare. This of course is in line with a move towards a functional assessment of capacity on an issue specific and time specific basis.

The Bill, in much the same way as the 1996 Act provides for the making of regulations by the Minister as respects enduring powers of attorney these are set out in S40 (3) of the bill .

In so far as there are differences in the new bill as regards the requirements, you will see at S40 (4) (d) that the bill requires that Enduring Power of Attorney created under the new provisions must contain a statement by the attorney to say that they understand the duties and obligations of an Attorney including –

(i) the duty to act in accordance with the guiding principles

(ii) the duty to act in the interests of the donor

(iii) the duty to account fully for any of the property of the donor that comes into the hands of the attorney or within the control of the attorney

(iv) the requirements relating to the registration of the power and

(v) the obligation to make reports to the public Guardian in compliance with S48 (4)

In so far as there is reference to the Guiding Principles they are set out in part 2 of the Bill commencing at S8.

The section talks about the “relevant person” and introduces a statutory presumption of capacity in favour of that person.

It is also noted at S8 (4) that a relevant person

“shall not be considered as being unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.”

S8 (7) refers to the “will and preferences “ of the relevant person and seeks to ensure that an intervention by a third party, is an attorney under and EPA is only done in circumstances where it is absolutely warranted having regard to the guiding principles

There are new oversight procedures envisaged which will potentially have a bearing on the operation of EPA’s

The new provisions of S48 of the Bill require the Public Guardian to establish and maintain a register of enduring powers of attorney that have been registered

Under that section:

S48 (2) Members of the public may inspect the register free of charge during normal office hours

48 (3) The Public Guardian may issue an attested copy of a registered enduring power of attorney to a person who on applications satisfies the Public guardian that the applicant has a good and substantial reason to be issued with such a copy

S 48 (4) to my mind is probably of most concern to us. It provides that

(a) an attorney under an enduring power of attorney that has been registered shall at least once every 12 months prepare and submit to the Public Guardian a report as to his or her functions as such attorney.

(b) Every such report submitted to the Public Guardian shall be in such form as may be determined by rules of court and shall in particular include details of all expenses and remuneration paid or reimbursed to the attorney concerned for the donor concerned.

This is a new provision which seeks to ensure greater transparency in the manner in which attorneys are managing the affairs of the donor.

It will be important that the attorneys obligations are clearly set out to them at the time the EPA is being signed so that they are fully aware of the new obligations they will be faced with after the power is registered.

Personal Care Decisions

In so far as personal care decisions are concerned the provisions of S41 of the Bill sets out the scope of the Attorney’s authority under the Bill in respect of the personal welfare of the donor. In a general sense these provisions are much the same as we have used to date under the current 1996 Act.However there are some changes proposed. For example the section allows a donor to “confer authority on an attorney for a donor to make any decisions about the donor’s personal welfare or specified matters concerning the donor’s personal welfare.

This is qualified slightly at Section 41 (2) where it is acknowledged that a personal welfare decision-

(a) Shall not extend to making decisions on healthcare in respect of a donor in circumstances other than those where a donor lacks or shortly may lack capacity, and

(b) extends to giving or refusing treatment by a person providing healthcare for the donor other than refusing life sustaining treatment

The intention here appears to be that an attorney will be able to make healthcare decisions on behalf of an donor but that that entitlement will not extend to them being able to refuse life sustaining treatment on behalf of the donor

There have been questions raised about this provision in particular as to whether or not it recognises the donors right to autonomy and self-determination in so far as it might result in a situation where a donor had made their views on healthcare very clear to their attorney in advance to include their views on whether or not they wanted to be given life sustaining treatment, only for the donor to find that they were not then permitted to have those views upheld under this provision.

S41 (4) has new provisions in it regarding the circumstances in which attorneys can restrain the donor. The section is drafted on the basis that it

“does not authorise an attorney to do an act that is intended to restrain the donor unless-

(a) the donor lacks capacity in relation to the matter in question or the attorney reasonably believes that the donor lacks such capacity

(b) the attorney reasonably believes that it is necessary to do the act in order to prevent harm to the donor or to another person, and

(c) the act is a proportionate response to the likelihood of the harm referred to in paragraph (b) and to the seriousness of such harm.

This is a new provision in respect of Enduring Powers of Attorneys and it will be interesting to see how it is dealt with in practice. In reality, it may well be the case that most instances of restraint will take place in private settings where there is no one there to monitor the situation. It will be interesting therefore to see the extent to which there may be many if any complaints brought about the over use of restraint by attorneys in due course.

There is an acknowledgment at S41(6) that the attorney does more than restrain the attorney if they deprive them of their liberty within the meaning of Article (5) of the European Convention on Human rights.

Although I am only quoting briefly from that Article it says that.

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …. ”

Presumably it is envisaged that if someone feels there is an unusual level of restraint taking place, they will be able to make a complaint to the Public Guardians office in accordance with section 56 (f) and seek the intervention of the Public Guardian in the case. Again we will have to wait and see what happens in practice

Registration of Enduring Powers of Attorney

The Bill has new provisions as set out in S45 relating to an application for registration. These are not dissimilar to the provisions for the registration of an Enduring Power of Attorney under the 1996 Act. The main areas of difference to be aware of are

1. The application will be made to the office of the Public Guardian as set out in S 46 of the Bill.

2. During the process of application for registration for the Guardian is obliged to make

“Such enquiries (if any) as he or she thinks appropriate in the circumstances of the case.” S46 (4)

3. If following those enquiries the Public Guardian is satisfied that there are valid grounds for the making of an objection to the registration they SHALL apply to the High Court for a determination as to whether the instrument should be registered.

As usual I would expect that the parties will be fully entitled to be represented in the High Court if there is an application for determination.

The High Court will also have powers to act in relation to Enduring Power of Attorneys once they are registered. The powers which are set out in S49 can be activated on the application of the donor, the attorney, the Public Guardian or any other interested party. Again these are generally similar to the current powers the High Court has as regards EPA’s under the 1996 Act

The High Court can also confirm the revocation of an Enduring Power of Attorney and the circumstances of that process are set out at S49 (4) & (5)

S49 (4) makes provision for the High Court to confirm the revocation of an Enduring Power of Attorney on application to it

“ if satisfied that the donor has done whatever is necessary in law to effect an express revocation of the power and was capable or

revoking the power of attorney at the time of the purported revocation”

And S49 (5) lists the circumstances in which the High Court can direct the Public Guardian to cancel an EPA

S52 (7) is also worth noting. It provides that on an application to register an Enduring Power of Attorney, if there is an objection to one of the attorneys who is applying to register the EPA, but not to the other proposed attorney(s) the Public Guardian can proceed to register the EPA notwithstanding the objection to one of the attorneys, and then can make an application to the High Court for a determination as to whether or not the instrument should be cancelled.

Overall whilst there are some changes to the mechanics of the EPA concept and to the registration process it will still be possible for people to create them and for them to operate in the way they have been, subject to greater scope being given for a broader assessment and recognition of the level of capacity that a donor may retain even if the power has to be activated, and subject to a greater level of scrutiny and accountability than has been the case

As regards the Wards of Court process however there will be significant changes imposed by the new Act

Wards are referred to as Part 5 of the Bill.

Wards are defined as a “relevant person in the Wardship of a wardship court”

A Wardship Court is defined as meaning “ the High Court or the Circuit Court exercising its jurisdiction in wardship matters”

S35 makes provision for an application to be made for the review of the capacity of a ward who has attained the age of 18, with the consent of the wardship court, at any time by either the ward or such other person who it appears has the necessary interest or expertise in the welfare of the ward.

Under the provisions of S35 (2) all existing Wards of Court will be subject to a review of their capacity within three years of the coming into force of the act.

The purpose of that review will be to enable the Wardship Court to determine if the relevant person does or does not have capacity and to make relevant decisions on their behalf according to the finding.

The provisions of S35 (3) allow the Wardship Court to discharge the ward from wardship if it is satisfied that the person does not lack the capacity to make decisions in respect of all matters. It can also make relevant ancillary orders to return the wards property to the ward and other matters

S35(b) (I) & (ii) make provisions for the Wardship Court to make directions to in respect of any Ward who it finds does not have capacity. It can make directions as regards the appointment of a co-decision maker for the ward as provided for under the terms of S15 of the Act.

Others will be discussing the concept of the co-decision maker and that persons role in relation to the relevant person for whom they are appointed as a co-decision maker and I will not be doing that here.

S36 of the Bill allows the Wardship Court to transfer existing adult wards to the Office of the Public Guardian which office will then become liable for the relevant supervisory role as set out under the Act, such that the Public Guardian then will have to exercise its functions in respect of that person and make the relevant provisions for them as set out.

The purpose of these sections of the act are to effectively do away with the current system of wardship and in so far as it is necessary, after an examination of all existing wards within three years of the coming into force of the act, to transfer all wards who are deemed to still lack capacity to the Office of the Public Guardian. This thus moves the Wardship process away from being an entirely substituted decision making process towards a more assisted decision making process

The Office of the Public Guardian will thereafter be responsible for the oversight of the former wards and the co-decision makers who are appointed to assist those parties will be accountable to the Public Guardian and the courts in the manner as set out in Part 4 of the Bill.

These provisions in relation to the review of Wards of court and their transfer to the Office of the Public Guardian apply to wards who are not in involuntary detention.

There are separate provisions at S68 and S69 of the Act designed to deal with Wards of Court who are involuntarily detained in an approved centre as defined in the Mental Health Act 2001.

In those circumstances the Bill provides that those Wards cases are to be reviewed “as soon as possible” without being specific as to a precise time frame.

These specific provisions apply to people who are detained under the Mental Health Act 2001 to whom the provisions of this act are not deemed to apply and so these provisions are separate to the general review of Wards of Court and transfer of their oversight to the Public Guardian as provided for in the act.

I propose at this stage to leave the matter there. I will say in conclusion that I am aware that various amendments to these proposals have been made to the Department and it therefore remains to be seen which of the amendments are accepted and incorporated into the final version of the Bill and then enacted.

We will have to wait and see.

Thank you

Mark Felton

Felton McKnight

September 2013