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AB ruling clarifies rights-based principles of 2015 act

The Assisted Decision Making (Capacity) Act 2015 was a long time in the making, write solicitor Trish Hynes  of FitzGerald Legal and Advisory, and Dr Joanna Ralston BL.

Enacted in December 2015, it only became operational on 26 April, 2023.

This is a rights-based piece of legislation and is largely Ireland’s response to obligations under the United Nations Convention on the Rights of Persons with Disabilities, in particular Article 12 which recognises the right to equal recognition for all before the law.

Because of its human rights underpinnings, the 2015 act requires a change in our perspective towards supporting decision-making for those whose capacity is in question and a move away from substituted decision-making.

Uncertainties to arise

Such a change in perspective mandated by the 2015 act means we can expect more substantial changes and uncertainties to arise in the future as the area of capacity law and jurisprudence develops.

To date there have only been two written judgments from O’Connor J in the Dublin Circuit Court.

The more recent judgment, In the Matter of AB, is the focus of this analysis.

The judgment concerns an application by the relevant person’s two children, who had previously been appointed decision-making representatives (hereinafter DMRs), to transfer AB’s family home into the joint names of AB and his wife.

It was submitted by the applicants that AB’s past will, and preference had been to transfer the property, but that he had not been able to effect such a transfer before his capacity was in question.

Property in sole name

This is not an uncommon situation where a property might be in the sole name of one spouse and such a transfer into their joint names would facilitate transfer of the property to the surviving spouse, avoiding the need to take out a grant of probate and ultimately reducing the costs and expense involved.

It is a common feature in Irish law that spouses transfer family homes into joint names.

There is reference to this as far back as the Family Home Protection Act 1976 where stamp duty and Land Registry fees are not charged where a family home is transferred by one spouse into the joint names of both spouses.

‘Did not infer intention’

In this instance O’Connor J ruled that because AB, who lacked capacity had not transferred the property into the joint names but made a will leaving the property to his wife, did not infer an intention or give rise to a situation that would allow the transfer of the house into the joint names by way of gift at this point.

The court rejected the application and noted that the court’s role was to safeguard the relevant person’s (hereinafter RP) property and “not to gift” it without very clear reasons considering all the circumstances.

This judgment, albeit that it relates to a specific set of facts, provides a very useful insight into the operation of the legislation and its guiding principles set out in Section 8 of the 2015 act.

The judgment refers to the framework within which the DMR can act and the place of the RP within that framework as well as the oversight role of the Decision-Making Service (DSS). 

This judgment also emphasises the role of a DMR to act as an agent for the RP in accordance with the known will and preferences of the RP.

The court stated that it must ensure that the powers conferred on a DMR are as limited in scope and duration as is necessary in the circumstances and not simply give authority to transfer legal interests by way of gifting the RP’s assets to third parties.

‘No urgent need’

The judgment went on to say that there was no urgent need demonstrated to the court for a deed of transfer of the family home into joint names of both spouses.

It was submitted on behalf of the applicants that the court is mandated to give effect to the RP’s will and preference to transfer the property into the joint names.

The court took the view that this is an unintentionally misleading interpretation of the 2015 act and its guiding principles.

A more appropriate interpretation according to O’Connor J is that the court is mandated to give very serious consideration to the transfer of RP’s property if it can be clearly established that it is the RP’s will and preference.

The court did not accept that there was sufficient clarity on the submission that the will and preference of the RP was to transfer the family home into the joint names.

The court referred to the reason of convenience rather than any hardship being demonstrated and the fact that no real supporting evidence was provided by the applicants.

This judgment is an important one as it highlights the importance of the necessity of independent legal advice for the RP.

Duty of lawyers

The judgment refers to the duty of lawyers where instructions cannot be obtained to at least attempt to ascertain the legal position and to advise the court of any possible conflicts of interest or legal issues that the court should consider.

It is the writers’ view that, pursuant to the general principles of the 2015 act and the centrality of the RP in all decisions concerning them, it is incumbent on all lawyers, irrespective of whether they are representing applicant or RP, to consider the benefit to the RP of any application under this legislation and to ascertain their will and preferences as far as is practicable.

The court concludes that the 2015 act is one which upholds the rights of vulnerable persons whose capacity is diminished and that this is relevant in construing its provisions.

This judgment provides a useful insight into the operation of this rights-based legislation before the courts.

Exceptional circumstances

In terms of the gifting of the RP’s property, it clearly states that exceptional circumstances would be required for the court to regard it as appropriate to gift the RP’s assets, rather than ensuring those assets are used for the RP’s benefit and for the benefit of those for whom an RP has an obligation to provide for and maintain.

Litigation of the rights-based principles of the 2015 act before the courts is to be welcomed in adding to the jurisprudence in this fast-developing area of the law concerning vulnerable persons.