Judge appoints independent decision-makers instead of siblings for interests of woman with dementia

Family members lack insight into ‘conflict of interest’ issues, says judge in key judgment under Assisted Decision Making (Capacity) Act

The Health Service Executive has secured court orders which mean two independent persons, rather than family members of a woman with dementia, will make decisions about management of her medical treatment, her substantial assets and her long-term care and accommodation needs.

A widow in her late 60s with no children, the woman had a professional career and her assets comprise her home, an apartment and three pensions. She has a significant history of mental illness, has dementia and is now in hospital care after living for some years in assisted-living hostels.

In a significant Circuit Court judgment concerning application of the Assisted Decision-Making (Capacity) Act, Judge John O’Connor granted the HSE orders appointing two decision-making representatives (DMR), from a panel managed by the new Decision Support Service (DSS), for the woman, referred to as Joan Doe.

Published late last month, the judgment is the first comprehensive exploration, in the context of the Act which became fully operational last year, of the tensions between a family’s argument they are best placed to promote the relevant person’s “wishes and preferences” and the HSE’s view that their conduct suggests otherwise.


For reasons including its concern about transparency of the woman’s assets and its view the woman requires nursing home care, the HSE asked the court to appoint two independent DMRs to make decisions about her long-term care and accommodation, medical treatment and financial affairs.

The family accepted the woman lacks capacity to make decisions on those matters but counter-argued three siblings are best placed to be appointed her DMRs. Family members argued they have looked after the woman throughout her adult life and know her will and preferences.

The court heard evidence from three siblings, the woman’s treating consultant psychiatrist, a mental health social worker and an independent solicitor who visited the woman several times last year seeking to establish her will and preferences in line with the requirements of the Act.

During those encounters, the woman, inter alia, said she would hate the idea of a nursing home “but it might come to that”. In the later visits, she did not actively engage, remarking in the last visit she was “too stressed” to do so.

One brother, the court noted, had been managing aspects of her financial affairs over some nine years and had lived rent free in her home for some two years; another brother is getting a €25 weekly payment from her; some of her money contributed to a holiday for a sister and a nephew; and the family will inherit from her estate upon her death.

The woman’s circumstances have “radically altered in recent months” and she no longer has capacity to understand will and preferences affecting the issues that need to be addressed, the judge said.

“It is self-evident, when someone lacks capacity, they are vulnerable,” he said. The court must both be “very respectful of respecting a person’s will and preferences” and “conscious of the need for effective safeguards to prevent abuse”.

There was “a lack of transparency and accountability” in the presentation of the woman’s assets, he said.

While the family members had “a strong belief they are acting out of a genuine caring disposition”, there were “regrettably too many issues that give rise to a serious conflict of interest for the family unit”, he said.

His decision to grant the HSE’s application, he hoped, would not impact on the close relationship between the woman and her siblings.

The judge directed the appointment of two DMRs, one to make decisions concerning the woman’s medical treatment and long-term care/accommodation and the second to make decisions about her financial affairs. Any sale of property will require a further court application.

The DMRs will be paid out of the woman’s estate and the matter will be reviewed in six months. Under the Act, any appeal against the judge’s decision may be taken only on a point of law.

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Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times