We welcomed John Costello to our Cafe in June 2018. John is a solicitor with Orpen Franks and he has almost 40 years of experience in advising clients in relation to wills, administration of estates, tax planning, wards of court, powers of attorney and other legal issues concerning older adults.

John talked to us about about a range of legal things to think about as we get older and some of the specific plans we should put in place if diagnosed with a cognitive impairment such as dementia. Highlights of John‘s talk are presented below and some more detailed slides are available for download at the end of each section.

Wills:

  • John highlighted the importance of making a will.
  • Try to keep it as simple as possible. A solicitor can help you out the will together especially if there are specific items that you would like advice on.
  • Click here for more information.

Enduring Power of Attorney (EPA):

  • John explained that an enduring power of attorney (EPA) is required in situations where an individual no longer has capacity to make decisions for themselves.
  • The EPA is created by the person with dementia (the donor) when they have capacity to determine who they wish to act of their behalf if they no longer have capacity to make decisions themselves. This can be 1 person (the attorney) or two people (attorneys) who act together or separately in the decision making process.
  • Once created, the EPA sits dormant until it is needed. It may never be activated, but if the donor reaches a point where they lack the capacity to make their own decisions, the attorney/attorneys can start the activation process. Confirmation will be needed by a medical doctor that it is appropriate to activate the EPA at this point. The donor and two other agents who have been nominated when the EPA was originally created, have 5 weeks to object if necessary.
  • The EPA gives the attorney the ability manage the donor’s affairs (e.g. finances). At the moment, it does not cover health care decisions. A Ward of Court would be required in this case.
  • Click here for more information.

Assisted Decision Making (Capacity) Act:

  • This new piece of legislation will come into effect on a phased basis.
  • It aims to maximise the ability of the person with dementia to make decisions for themselves. For example, it doesn’t assume that capacity is ‘all or nothing’. A person may not be able to make financial decisions unaided but they may be able to make decisions about where they live.
  • The act also aims to provide the most appropriate level of support to help people who lack capacity to make their own decisions. This may be a little support (e.g. explain the decision in simpler terms) up to a lot of support (e.g. enduring power of attorney).
  • EPA remains under this act and existing arrangements will be valid (no additional work will be needed). However, EPA has broader decision-making powers once this act comes into operation, including the ability to make health care decisions.
  • The Ward of Court system will no longer be needed under this Act.
  • Click here for more information.

 

John is also the author of a book called “Law and Finance in Retirement (3rd edition)”. The book highlights essential legal and financial issues for older adults. Apart from Wills, Probate, Inheritance Tax Planning and Powers of Attorney, it also covers Income and Capital Gains Tax, Pensions and State Entitlements. In particular, it highlights the major legal reform of the Assisted Decision Making (Capacity) Act 2015. This Act replaces Wards of Court with new legal arrangements to assist people, where necessary, to make decisions regarding personal, legal or financial matters.This Act also modernises the law on medical treatment and legalises Advance Healthcare Directives for the first time. If people need nursing support or care, the book also examines all the options available. Proceeds from the sale of this book go to the Alzheimer Society of Ireland.

http://www.books.ie/law-and-finance-in-retirement-third-edition