Planning for future incapacity is now a major trend throughout north America, according to the Public Guardian of British Columbia in Canada.
Jay Chalke was speaking at a Law Reform Commission conference on Guardianship: a new structure for vulnerable adults in Dublin yesterday.
The conference is part of the consultation process on preparing a final report on this topic. The proposals are expected to replace the ward of court system.
"We are grappling with the need to balance empowering people to make plans on the one hand with their security and safety on the other," Mr Chalke told The Irish Times. This covered the areas of property, financial affairs, and that of healthcare.
"How do you make good plans, and not just any plans?" he asked.
"There must be steps to ensure that when you make a document you are not subject to undue influence. We must ensure there is a clear and effective system for investigating concerns that someone might be abusing their position. Banks or lawyers who have concerns need to be able to call someone."
The office of the Public Guardian and Trustee in British Columbia is the place concerned people call if they have any worries that a vulnerable adult, for example, a person suffering from a mental illness or a degenerative condition like Alzheimer's, is being exploited.
It issues best-practice guidelines for those acting on behalf of such adults, as well as having powers of investigation. "It is a carrot-and-stick approach," he said.
Most of the personal representatives of vulnerable adults are relatives, but the Public Guardian's office provides people if there is no one else to do this. He said that while most families behaved very well, there are instances where relatives of vulnerable people seek to "take their inheritance early".
The question of consent to medical procedures is also dealt with by his office. The best situation is where a person nominates someone to represent them if they become incapable, but this often does not happen. A close relative, if available, can fill this role, but only if they have met the person recently.
Otherwise, the office of the Public Guardian has staff who assist in the decision-making process, through meeting the person concerned and the doctors.
It helped in making decisions involving 600 people last year, out of a population of just over four million.
Baroness Hale, a leading British lawyer in the area of human rights and mental health and now a Law Lord, asked at what point the law should step in and regulate people who are making decisions on behalf of those unable to make them for themselves.
She said its view was based on the presumption of capacity, "that a person may be capable of taking some decisions some of the time even if not of taking all decisions all of the time, and with the desire to intervene in the least restrictive manner possible".
Meanwhile, the UK had to face a legal challenge in the European Court of Human Rights to its procedures for giving treatment to people suffering from incapacity, without their consent, but without them explicitly objecting.
It lost the case, and this led to a proposal for a new institution, Protective Care, which allows for the detention of people so that care and treatment can be provided in their best interests.