Ask a solicitor: My aunt, who owns the farm, is starting to dote

My aunt lived on the farm with her husband, who sadly died in a car accident many years ago, alongside their only child, so after my uncle died, she leased the farm to a neighbour. She also owns several apartments in the nearby town, some of which are rented out.

The nursing home staff have advised me to seek legal advice about being able to make decisions on my aunts behalf as I am her nearest surviving relative, and there are no other nieces or nephews living in Ireland. Am I permitted to make decisions on my aunt's behalf, and if so, how do I go about formalising this? There is no power of attorney in place.

Dear Reader,

If there was an Enduring Power of Attorney in place this would have permitted the Attorney appointed to make decisions on your aunt’s behalf once she has been assessed to have lost capacity.

However, you can apply to become a 'decision-making representative' under the Assisted Decision-Making (Capacity) Act 2015. This Act came into force last year and replaces the old Wards of Court system.

The court can appoint a decision-making representative for a person who is unable to make certain decisions by themselves, or they can appoint a 'co-decision maker' in situations where a person needs support in making decisions.

You will need to get a report from your aunt's GP/consultant, which states that she doesn’t have the capacity to make decisions by herself and whether she would be able to make decisions with the assistance of a co-decision maker or not. 

The report will also need to have reference to section 3(2) of the Assisted Decision Making Capacity Act 2015, which states that a person lacks the capacity to make a decision if or she is unable to:

• To understand the information relevant to the decision;
• To retain that information long enough to make a voluntary choice;
• To use or weigh that information as part of the process of making the decision; or 
• To communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

The Court Order, if granted, can list all of the decisions that the decision-making representative can make, e.g., those in relation to the lease of the farm and any rental properties, as well as any fair deal application. The decisions can be about your aunt’s property and affairs and/or her personal welfare.

The application is made in the Circuit Court. However, as a niece of the relevant person (which is what your aunt will be known as), you will need leave of the court to make the application. As such a without notice application is made to the court for permission and if granted, then the substantive application can be made.

The application will need to be served on your aunt. There would also be other notice parties who will also need to be served with the application. You will need to provide evidence to the court that both your aunt and any other notice parties have been served with the application.

The court, upon receipt of the application, will list a hearing date, and at that hearing, the court will consider whether a decision representative should be appointed and what decisions they should be allowed to make on the relevant person's behalf.

The court usually also requires a report from an agency such as Sage Advocacy, which will record your aunt's wishes and feelings about the application. 

It is important that a referral for such a report is made early as these reports can take time, and the court may not make any Order until this report has been received.

It is advisable to instruct a solicitor to assist you with making this application.