Planning Ahead for Incapacity


In order to express ones will and preference the optimum method is to provide written instructions in the form of an Enduring Power of Attorney (EPA) and an Advance Healthcare Directive (AHD), when one has capacity to do so. The logic behind this is that the important principle of personal autonomy means that every adult should have the capability of expressing their wishes.

Although a clear prior declaration by an incapacitated patient in relation to their medical treatment would be recognised by the courts, the Capacity Act sets out the statutory basis for the form, validity, applicability and scope of an AHD.

The legal principle is that a person has the right to consent to and to refuse medical treatment and the concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Persons whose decision-making capacity is at issue still have the legal right to consent to and refuse medical treatment.

Advance Healthcare Directive

An AHD is an advance written expression of the will and preferences of a person and it is made when the person has capacity.  It relates to the treatment decisions that may arise in the event that the person was to subsequently lose their capacity and it would only come into effect when the person lacks capacity in the future. The law in relation to AHD, does not affect the existing law on euthanasia or assisted suicide.

Enduring Powers of Attorney

The characteristics of an EPA under the Act are underpinned to a large degree by the functional approach to capacity and the spirt of the guiding principles.


The Act introduces supervision of EPAs by the Director of Decision Support Service, as at the time of registration of the EPA as to whether the person making the application for registration continue to be a “suitable” person. The Act sets out duties and obligations of an attorney and will provide for periodic review and reporting requirements on the part of the attorney to the Director.


Additional safeguards in relation to the content of an EPA are provided for in the Act[1] and this expands on that required under the 1996 Act.


[1] Assisted Decision-Making (Capacity) Act 2015, s60

I suffered serious head injuries following a road traffic accident. I don’t remember much about the accident but the doctors told me it was a miracle I survived. Stephen Walsh & Co. Solicitors came highly recommended and within an hour of meeting them I knew I had made the right choice. They gave me all the information I needed and advised me on the help they could offer me and I thought, my life is going to change for the better. They worked with all my doctors: ED Consultant. Neurosurgeon, Maxillofacial Consultant, Orthopaedic Surgeon, Psychiatrist and Clinical Psychologist. Although the other party attempted to contest liability Stephen and his team got a huge six figure settlement for me that has allowed me to move on with my life in the best way possible.

Steven B.

Stephen Walsh & Co Solicitors can
assist you to plan ahead



As a child’s brain has not fully matured, it means that the full extent of the damage from a child’s brain injury may not become apparent until all the parts of the brain have reached full development.

This means it can take years for you to find out exactly how your child has been affected, especially with younger children. Because of this, there are longer timescales in which to start a claim in the case of a child.

Following a brain injury, someone may find it difficult to concentrate, experience problems with co-ordination or speech, develop behavioural issues or suffer impaired mental capacity. Any of these can leave you needing extra support, which a claim can help towards.

Claiming compensation is about future-proofing and ensuring you have the financial support necessary to cope with your situation.

Brain injury in children law


Compensation for brain injuries, especially severe brain injuries, is often very substantial and can run into hundreds of thousands, even millions of euros. The awards are so large in complex cases because they are intended to cover all the future needs someone will have as a result of the injury.
Compensation is made up of two elements – general damages and special damages.

The general damages element is intended to provide compensation for the pain, loss of amenity and suffering caused by a brain injury. There are guidelines on how much this part of the payment should be.

In addition to a general damages claim our traumatic brain injury solicitors will put together a special damages claim that is unique to you. This element of the claim can be very comprehensive as it is intended to itemise and cover for all your future and current needs in relation to the brain injury. That means everything from communication and mobility equipment and technology to house adaptations and carers.
It will take many months, usually years, to develop this list and negotiate a payment accordingly. We will always seek interim payments to cover immediate costs you may have before the final settlement is agreed. Interim payments can be substantial in themselves, and offer early financial relief when your resources are being strained by the increased expense of caring for a person with a brain injury.

Talk to one of our Solicitors today.
Call us on 045 881193