Assisted Decision Making/Wards of Court

Assisted Decision Making may be required for a person not able to manage his or her affairs.

Prior to 26 April 2023, a person who the courts decided was not able to look after their own affairs was made a Ward of Court.  Decisions were made on their behalf by the court or a person or people appointed by the court known as the committee.

The Assisted Decision-Making (Capacity) Act 2015 set out a new system for helping people having difficulty because of reduced or no capacity.  Capacity is the ability to understand when a decision is being made and the nature and consequences of the decision in the context of the available choices.

One of the key principles of the Act is that every individual’s right to autonomy and self-determination has to be respected.

The Act established a tiered system of decision support arrangements for people who need help with making decisions:

  • Decision-making assistance agreements
  • Co-decision-making agreements
  • Decision-making representation orders

The Act also allows a person to plan for a time when he or she might lose their capacity.  Future planning arrangements can include Enduring Powers of Attorney, Advance Healthcare Directives and Special Needs Trusts.

With increasing numbers diagnosed with cognitive disabilities such as Alzheimer’s disease and dementia we are finding much greater demand for assistance.

Most people would prefer to make their own decisions rather than have someone else decide for them.  The main pre-emptive measure is to make an Enduring Power of Attorney.

An enduring power of attorney allows you choose what happens if you become mentally incapable. This can happen to anybody. Prudent personal, family and estate planning dictates that you should cater for the eventuality. Your Will only comes into operation after your death and has no effect before that. As they operate while you are alive, Enduring Powers of Attorney are often called “Living Wills”.

One can also consider Advance Care Directives or Special Needs Trusts.  If you have responsibility for a person with special needs, a Special Needs Trust allows persons appointed by you to make key decisions when you are no longer able to do so.

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The Nursing Homes Support Scheme, also known as the “Fair Deal”, is a scheme of financial support for people who need long-term nursing home care. It was introduced in 2009. Under the Nursing Homes Support Scheme, a successful applicant makes a contribution towards the cost of care and the State pays the balance. The nursing home can be public, private or voluntary so long as it is approved. Anyone ordinarily resident in the State can apply. The Fair Deal covers long-term nursing home care only and does not apply to short-term care (e.g. respite, convalescent or day).

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The HSE administers the Fair Deal scheme. We can assist with the application process which has three steps:

Step 1 – Application for Care Needs Assessment. This is to determine that the applicant needs long-term nursing home care.

Step 2 – Application for State Support (Financial Assessment). The Financial Assessment looks at the applicant’s assets and income to work out how much the applicant will be required to pay and how much the State will fund. For example, if the cost of care is assessed at €1,000 per week and the applicant’s weekly contribution is assessed at €300 the HSE will pay the balance of €700 per week.

All applicants must complete Steps 1 and 2.

Step 3 – Application for Nursing Home Loan (“Ancillary State Support”). This is optional. It gives applicants the opportunity to defer paying that part of their contribution which has been assessed based on their assets (as opposed to income) and to allow the HSE make the payments instead on the basis that the sums involved form an accruing loan to the applicant from the State.

It is possible to repay the loan at any time although in practically all cases the loan is repaid after the applicant’s death. The amount ultimately repaid is determined by the type of property involved and the so called “three year cap” may limit the sum repayable. One of the benefits of the Nursing Home Loan is that an applicant is not forced to sell property during his or her lifetime. A person may choose to apply for the Nursing Home Loan when making the initial application or at any time while resident in the nursing home.

It is important to note applicants cannot avail of State funding for a nursing home place prior to approval by the HSE. In certain cases, transitional or interim funding may be available. The standard Fair Deal application form can be seen here.

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+353 1 677 3434

+353 1 677 3445

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11 St. Stephen’s Green, Dublin 2

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Since 1991, Thomas Barry & Company Solicitors, Dublin have continued to expand and develop our legal services. We will use our experience and expertise to provide advice, guidance and legal representation in relation to your legal issues. We can provide both commercial and private clients with a tailored and effective service to help them reach a successful conclusion.

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