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ADVANCE HEALTHCARE DIRECTIVES (AHD)

Covid Times

In the face of the coronavirus pandemic we should all apply our minds to the end of our lives and express our wishes in a written document.  The Irish Hospice Foundation has published the most comprehensive form entitled “Think Ahead”.  Eventually, these forms will have legislative recognition and medical staff will be expected to abide by our wishes subject to all the legal qualifications being in place.

You don’t need a solicitor.  Check out www.thinkahead.ie

At the outset it should be noted that AHDs are not yet recognised by the law.  The Assisted Decision Making (Capacity) Act 2015 introduced the concept.  The Act was signed by the President on 30 December 2015 but most of it has yet to be implemented and, when it is, it will be significantly altered.

In a celebrated case heard in 1995 and entitled In Re a Ward of Court the Supreme Court listened to the arguments put forward on behalf of the parents of a 45 year old woman, who was in a persistent vegetative state due to a cardiac episode, to allow her come off a life support system.  The action was taken, not by the patient or her parents, but by the Office of Wards of Court.  In granting the order, the court gave judicial approval of a dignified death based on the health carer’s pleadings.  At the same time it lamented the absence of a statutory guideline.

Very quickly, in 1996, the Oireachtas passed into law the Powers of Attorney Act.  This piece of legislation created an instrument known as an Enduring Power of Attorney (EPA).  An EPA allows a competent person to decide who will make decisions on that person’s behalf when he or she becomes mentally incompetent.  Until that moment, decisions could only be made in that circumstance by the High Court where the individual had been committed as a ward of court.

While the 1996 Act was helpful it did not go far enough.  The concept of wardship is outdated and the 2015 Act sought to abolish it. Part 8 of that Act provided for the creation of an AHD and the appointment of designated healthcare representatives by the directive makers. The 2015 Act succeeded in setting up the Office of Decision Support Services and an officer was appointed.  She has been active over the past 4 years in establishing a set of protocols involving all sorts of people who have a stake in the care and general lookout for persons who are unable to make decisions on their own account.  These protocols will be put to public consultation before a further Bill is brought before the houses of the Oireachtas at some stage in the future.

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HOW TO MAKE AN ENDURING POWER OF ATTORNEY DURING LOCKDOWN

COVID TIMES

LOOKING AFTER NO. 1

More people are dying in nursing homes than in hospitals during this coronavirus pandemic. It paints a picture that is not necessarily a true one – of pain and misery inside the isolated corridors of virus clustered so-called sanctuaries for the weak and aged. These places haunt the imagination of Ireland’s ageing. Many see them as a dumping ground for unwanted generations.

As someone who has been visiting nursing homes for over 40 years in a professional capacity I can assure you that they have transformed themselves from what they used to be. They are now clean, bright, happy places where the quality of life for older people is enhanced beyond their previous existence at home.

The critical difference between life in a long term caring facility and life alone at home is the family dimension. It is therefore strange to me that so many among us, who face retirement, neglect to provide for the ultimate decisions. Where shall I die and who will be the judge?

If the ability to make those decisions, personally, fails you due to dementia, alzheimers or stroke you can put a family member in charge by making an enduring power of attorney (EPA). Not to do so, on the basis that “it won’t happen to me”, is a gamble. Without an EPA in place, a person who has lost mental capacity becomes a candidate for wardship. In that case the High Court will entrust the elderly patient to the care, not of the family, but, more likely, the HSE.

HOW TO MAKE AN ENDURING POWER OF ATTORNEY DURING LOCKDOWN

Contact me at jmk@pals.ie or 0862540634.

We will prepare a file and send you out a preparatory letter.

I will set up a Zoom chat or phone call, preferably including your intended attorneys (allow one hour). I will explain how it works and if you know what you want you may give me all the details from the comfort of your living room. Within that hour I will have an 18 page document printed and prepared for signing with your all important decisions recorded.

There are 3 alternate methods of signing:

  1. Home. When you are happy I will ask you to print on good quality paper. You may then sign the EPA as indicated in the appropriate places before an independent witness (not the attorneys who must also sign). I will then ask you to post the original pages back here where we will then proceed with the process of serving notices and obtain the doctor’s certificate. We will copy you with the final booklet in due course.
  1. Office. You will drive to Adelaide Street where I will meet you while you remain in your car. I will pass the documents through the window and you sign on the dashboard. I will witness by signing on the bonnet
  2. Garden. I can call to you.

Fee payment will be by card or cheque. The cost is €900 incl vat for a single and €1300 for a pair (husband and wife).

JUSTIN MCKENNA