The statutory office of the Director of the Decision Support Service (“DSS”) (the “Director”) was established under the Assisted Decision-Making (Capacity) Act 2015 as amended (“2015 Act”). The DSS will provide an essential service for people who face difficulties exercising their decision-making capacity. This may include people with an intellectual disability, acquired brain injury, mental health difficulty or dementia. This also includes all people who want to plan ahead for a time when they might lose their capacity. The DSS will help to protect and uphold people’s rights, to make their own decisions about their personal welfare, property, and affairs.
The Convention on the International Protection of Adults, signed at the Hague in 2000 (“the Convention”), is addressed in Part 11 of the 2015 Act. The Convention, once ratified by Ireland, will come into effect within a period of approximately 3 months.
The Convention in Article 1 states that it applies “to the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests.”
This means that the Convention applies to the protection, in appropriate circumstances, of adult Irish nationals while they are outside of Ireland, or, who have property outside of Ireland. The Convention also applies to the protection of non-Irish adult nationals, who are habitually resident in Ireland or have property in or outside of Ireland. Countries that have ratified the Convention are called Contracting States. The Convention assists in determining which country’s laws apply to an adult or their property in an international situation. For example, it provides for the recognition, in another Contracting State, of certain orders of the Irish courts and for advance planning arrangements, like enduring powers of attorney and certain advance healthcare directives validly made in Ireland.
Under section 113 of the 2015 Act, the Director is appointed to perform the functions conferred on the Central Authority for matters relating to the Convention.
As Central Authority, the Director’s main functions are to act as a facilitator for communications between competent authorities (judicial and administrative bodies) in Ireland and competent authorities in other Contracting States, and to co-operate with Central Authorities in other Contracting States. This could include liaising with the appropriate authorities in Ireland, to assist in discovering the whereabouts of an adult who may need protection, or where the placement of an adult in another Contracting State is contemplated.
The Central Authority can provide information in relation to the Convention and the statutory supports available in Ireland but does not provide legal advice. If legal advice is required, you should contact a suitably qualified legal professional.
Role of the Courts
The courts in Ireland are given power under the 2015 Act to deal with situations to which the Convention applies.
Section 125 of the 2015 Act, allows an interested person to apply to the High Court or Circuit Court in Ireland for a declaration, as to whether a measure taken under the law of a different Contracting State shall be recognised in Ireland.
Section 127 of the 2015 Act, allows an interested person to apply to the High Court or Circuit Court in Ireland for a declaration, as to whether a measure taken in another Contracting State can be enforced in Ireland. Once a declaration under Section 127 has issued, then it is enforceable in Ireland, as if it had been made in Ireland.
Examples of potential application of the Convention
Please note that scenarios 1 and 2 are based on both countries being contracting states.
A British national formerly resident in Scotland has been living and is habitually resident in Ireland since his retirement 10 years ago.
He owns property in Scotland and Ireland.
He now does not have capacity to take certain decisions about his property and affairs. His property needs to be sold to provide funds for his care while he is living in Ireland. He has a son living in Scotland.
Whilst the man was resident in Scotland, he granted his son extensive powers, under the equivalent of an Enduring Power of Attorney, to be exercised in the event that he lacked capacity to make the decisions, as set out in the instrument.
The manner of exercise of the powers of representation would be exercised in accordance with the law in Ireland.
A man with Irish nationality dies in Ireland. He is survived by a 40-year-old daughter whose habitual residence is in Germany.
She suffers from an enduring mental illness and has been placed under a protective regime by the court in Germany. The German court has appointed her cousin, who is resident in Germany, to act and make decisions on her behalf.
The German courts are entitled to make decisions related to the protection of the woman’s interests, as she is habitually resident in Germany.
The Convention would ensure that the powers of her cousin granted by the courts in Germany, would also be recognised in Ireland and other Contracting States.
The cousin may be issued with a certificate by an authority in Germany, outlining his/her powers of representation, in the event that the cousin was required to represent the woman, in relation to her father’s estate in Ireland.
If you are a member of the public or a service provider, please contact the central authority at:
Email address: firstname.lastname@example.org.
If you are a Central Authority of another Contracting State, please contact the central authority at:
Email address: email@example.com.