Mental capacity and an enduring power of attorney

Why do we need a doctor’s letter to sign an enduring power of attorney?

Surely if, under the mental-capacity legislation, it is assumed everyone has capacity – why do we need a letter from a doctor to say we have capacity to sign an enduring power of attorney?

And surely the fact that we are initiating an enduring power of attorney process is, in itself, evidence of capacity? What do you think?

Ms MF, email

There is a lot happening in the area of mental capacity and mental health at the moment but, as with most things in Irish law, it seems to be a case of two steps forward and one step back. Nothing ever happens at speed.

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The presumption of mental capacity to which you refer is set down in the 2016 Assisted Decision-Making (Capacity) Act – or , at least, I presume that’s your reference point.

The problem is that, although this piece of legislation passed through the Oireachtas nearly two years ago, it has not yet taken force. Small parts of it have been activated, but not the substantial elements that fundamentally alter the presumption of decision-making capacity in a practical environment. That awaits action from the Minister, and my understanding is that that will not happen before next year, at the earliest.

As a result, it is difficult to be certain how things are going to operate in practice.

A major, and welcome, change under the legislation is the introduction of legal force for advance healthcare directives. Until now, a person can express their wishes regarding healthcare – and especially about aggressive medical intervention, about which many older people have strong views – but medical professionals were not bound by these decisions.

Essentially patient care was governed by the views of the particular medical professional rather than the wishes of the patient.

In future, as explained by Inclusion Ireland – the national association for people with an intellectual disability – regardless of whether the preferences expressed appear unwise or might result in death, they will not be dismissed. Medics will be forced to comply with a refusal of treatment request as long as the person involved had mental capacity when the document was drawn up.

On the flip side, you can’t force medics to proactively intervene to provide treatment, although they would have to consider any such request.

Of course, we have to wait for the law to be activated before these provisions come into force. At that point, it will almost certainly see changes to the enduring power of attorney process but we’ll have to wait a little while to see how that works out.

But it would be a mistake to confuse a presumption of mental capacity with an automatic default position that someone has such capacity – or that it takes medical assessment out of the process. The presumption provision, as I understand it, means that, unless there is evidence to the contrary, you are presumed to have the capacity.

But where there is concern on this point, it remains open to doctors to test whether that capacity is impaired. So they will remain a part of the process.

If you are dealing with a legal decision affecting personal care and/or healthcare decisions – such as an enduring power of attorney – or whatever structure replaces it, it seems entirely reasonable that a doctor would be involved. The difference, I guess, is that they would not be asked to confirm that you have mental capacity – as that is presumed – but only to intervene to test that capacity, where concern exists.

It would also be a mistake to presume that, just because someone begins the process of putting in place an enduring power of attorney, you have mental capacity. The fact that you are beginning the process could well be an indicator of mental capacity but it is not a guarantee of it.

This is a major decision and the current checks are in the system precisely to protect possibly vulnerable people from being pressurised into handing over control of their personal, health and financial decisions to potentially unscrupulous family members.

Elder abuse is, unfortunately, a reality in our society even if it is rarely discussed openly. The current laws require that a lawyer sign to confirm that the person giving the power understands precisely what is involved, and that a doctor confirms they have the capacity (under current rules) to make such a decision.

The new law enhances the rights of the individual: it doesn’t, nor should it, entirely remove the role of professional advisers.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice