Consultation Paper on Law and the Elderly

By Órla Gillen, Monday, 9th June 2003 | 0 comments
Filed under: 2003.




Law Reform Commission issues Consultation Paper on Law and the Elderly

The Law Reform Commission has made provisional recommendations in a Consultation Paper published today as to the development of legal mechanisms for the protection of Elderly People.

The Law Reform Commission is conscious that the elderly constitute a significant and growing group who may also need specific support and protection from the legal system. While the majority of elderly people do not need any special legal support or protection, there is a significant minority who, because of illness or disability, impaired mental capacity or social and economic dependency do need protection. They may require protection from physical or mental abuse. They may need protection from misuse of their money or property. At some stage they may need help with making decisions and ultimately may need a substitute decision maker. This is a matter of interest to everyone and not just to the current generation of elderly people - any one of us could become a vulnerable adult in need of protection.

To a considerable degree the legal responses to these difficulties draw on a common stock of rules and concepts, most obviously the wards of court system, which may apply to an orphan or anyone who is incapacitated as a result of a serious accident. Nevertheless, in this paper the focus is on the law in relation to the elderly. But while we have concentrated on the elderly, it goes almost without saying that, as will become clear, the law in this area has created a common shelter under which many citizens may take refuge.

Vulnerable older people are covered by the law in relation to crime, tort, domestic violence, breach of trust and other relevant areas in exactly the same way as other people, but the exercise of their rights under the law may not always be practicable. While this Consultation Paper is primarily concerned with the legal mechanisms and responses which are required to protect the elderly, these must be seen in the context of health and social care services because the protection of vulnerable elderly  people cannot be guaranteed by legal mechanisms alone, and the need for protection would be considerably reduced if adequate health and social care services were available.

Given the unsatisfactory state of the current mechanisms available to protect the Elderly, the Commission is recommending the introduction of a new system for their protection. The new system will replace the current and outdated Wards of Court system, and put in its place a system of Guardianship. When a Guardianship Order is made, a Personal Guardian will be appointed to the Elderly Person who will have overall responsibility for the day to day care of the vulnerable adult. A Public Guardian will be introduced, who will have the responsibility to protect and vindicate the rights of Elderly People by providing certain services, having overall responsibility for attorneys registered under EPAs, and supervising Personal Guardians. To this end, a Tribunal will be established, the primary task of which will be to determine the legal capacity of vulnerable elderly people. There will be two-strands to the new system:

  1. A substitute decision making system which it is proposed to call Guardianship. This would provide for the making of Guardianship orders by the Tribunal in the case of people who do not have legal capacity and who are in need of Guardianship, and the appointment of Personal Guardians who would make some of the required substitute decisions.
  2. An intervention and personal protection system which would provide for three forms of Specific Orders

These would be available for two broad categories of people: those who have legal capacity but who need protection and are unable to obtain this for themselves, and those people who do not have legal capacity but who do not need a substitute decision maker.

The Consultation Paper is intended to form the basis for discussion, and its recommendations are provisional only. The Commission will make its final recommendations in a Report which will be prepared following consultation with interested parties. To that end, those who wish to make submissions are requested to do so in writing to the Commission by 30 September 2003.

The Consultation Paper will be launched by Mary McAleese, President of Ireland at a reception in the Law Reform Commission Offices at 10.30am on Monday 9 June 2003.