As Christmas approaches, many families in Ireland are looking forward to spending the festive season together with parents, grandparents and other older relatives. These gatherings can often bring to life the realisation that a loved one is becoming more vulnerable or finding decision making more difficult than usual. It is often at this time of year that families start to question whether Wills and decision making
arrangements are up to date and what should happen if a loved one can no longer manage on their own.
In Ireland there are now very clear legal structures in order to help families plan for both death and loss of capacity. Understanding the legal structures and putting the right documentation in place before an untimely event, can make a real difference to everyone involved.
Why planning ahead matters for older or vulnerable relatives
A Will and appropriate decision making support are not just pieces of paper. They are practical tools that answer key questions.
● Who will administer a person’s estate and who should benefit when they die
● Who can help them with important choices if their ability to decide is reduced
● How their wishes will be respected on matters such as money, property and personal welfare
Without a valid Will in place, Irish intestacy rules decide how an estate is divided. A surviving spouse or civil partner has a legal right to a share in the estate and children may also be entitled to a portion, regardless of what the deceased may have wished for. Leaving it up to the intestacy rules discretion can create unintended outcomes or tensions within families.
Similarly, if someone loses capacity without having support from the options under the Assisted Decision Making (Capacity) Act 2015, decisions may have to be produced through more complex court proceedings. Since April 2023 the Act has been fully commenced, wardship has been abolished and a new rights-based decision support framework has been placed into action.
Discussing these issues while relatives are together over Christmas, also while the person in question still has capacity, is usually far easier than trying to piece things together in an emergency.
Wills in Ireland: key points to remember
For many families the first step is to ensure that a Will is in place or that an existing Will still reflects current circumstances.
Under Irish law, any adult with capacity can make a Will, provided that they understand what they own, who might expect to benefit and what it means to dispose of their estate. A properly drafted Will allows a person to:
● Choose their executors
● Decide how assets such as the family home, savings or business interests are divided
● Provide for vulnerable dependants in an appropriate way
● Reduce the risk of disputes after death
However, there are legal limitations on the extent someone can exclude those in their close family from their Will. A spouse or civil partner still has legal rights to a fixed share of the estate, even if the Will states otherwise and children can be entitled to provision under certain circumstances. These rules need to be taken into consideration when planning for a vulnerable family member, especially where one
child is more dependent than the others.
Reviewing a Will is particularly important in situations wherein there has been a significant change such as bereavement, divorce or separation, a new relationship, the sale of a property or the diagnosis of an illness that may affect capacity.
The Assisted Decision Making (Capacity) Act 2015: What has changed
The Assisted Decision Making (Capacity) Act 2015, as amended, has transformed how Irish law approaches adults who require support with decision making. The Act supports people to make their own decisions wherever possible, with assistance only when absolutely necessary.
For people who already have challenges with certain decisions there are three main supports:
● Decision making assistance agreements
● Co decision making agreements
● Decision making representation orders
These allow someone to choose a trusted person to help gather information, weigh up options or make specific decisions with them, or, in more serious cases, for a court appointed representative to make defined decisions on their behalf.
There are also two important arrangements for planning ahead
● Advance healthcare directives setting out wishes about medical treatment if the person later lacks capacity
● Enduring powers of attorney allowing a chosen attorney to deal with property, finances and sometimes personal welfare matters if capacity is lost in the future
All of these arrangements are designed to be flexible, proportionate and prioritised around the person’s own will and preferences. The older wardship model has now been phased out, with Government confirming its abolition when the Acts were fully operationalised in April 2023.
Using the Christmas period to start a gentle conversation
Families often worry about how to raise subjects such as Wills or future capacity with an older relative. Christmas can offer its own natural opportunities, a quiet moment after a family meal, a conversation prompted by memories or stories about previous generations, or even just a practical discussion about paperwork and finances for the year ahead can all open the door.
Some helpful approaches include
● Focus on reassurance – Emphasise the fact that planning is about keeping control and reducing stress for everyone, not about taking anything away.
● Keep it practical – Suggest a simple first step such as listing important documents, checking whether there is a current Will or attending an initial appointment with a solicitor.
● Listen carefully – Older relatives may already have clear route regarding who they trust, how they want to be cared for or what should happen with the family home.
In the case that someone has already started finding decisions difficult, it may be appropriate to explore whether a decision making assistance agreement, co decision making agreement or other support under the Act could help them remain in control of key decisions for as long as possible.
How Dillon Solicitors can help
Dillon Solicitors provide a dedicated personal law service covering Wills, Probate and the Assisted Decision Making Act for clients across Dublin and beyond. The team is experienced in guiding families through difficult conversations, drafting clear
Wills that reflect both legal requirements and personal wishes, and advising on the full range of decision support arrangements that are currently available in Ireland.
If you are concerned about an elderly or vulnerable member of your family this Christmas, or you simply feel as though it’s time to put your own affairs in order, taking advice early can offer well-deserved peace of mind.
For tailored guidance on Wills or the Assisted Decision Making (Capacity) Act 2015, you can contact Dillon Solicitors on +353 (0)1 296 0666 or by email at info@dillon.ie.
