The Gazette 1994

GAZETTE

N E W S

APRIL 1994

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

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.

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,

usually the husband. Unless this

situation is sorted out before the

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."

The second area of law requiring

reform, he suggested, was adult

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)

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