Assisted Decision-Making (Capacity) Act is now Enacted

John A Sinnott Solicitors, assisted decision making act

The Assisted Decision-Making (Capacity) Act 2015 came into effect on 26 April 2023. It is a law that establishes a new legal framework for supported decision-making in Ireland. It allows for people who may have difficulty in making decisions, to make legal agreements on how they can be supported to make decisions about their welfare, property and affairs.

People who may have difficulty making decisions include, for example, people with intellectual disabilities, acquired brain injury, mental health difficulty or dementia.

Who in particular will this apply to?

Across Ireland, it will apply to over:

64,000 persons with dementia

18,000 adults with an intellectual disability

15,000 patients admitted to psychiatric centres every year

2,500 wards of court

It will also apply to many more thousands of people who may need support for decision-making from time to time

It will transform our antiquated legislation (from 1871) for vulnerable people over the age of 18 by supporting people in making their own decisions about their everyday lives.  A new office will be established, the Decision Support Service (DSS).

What are the main elements of this Act?

There are three types of legally recognised decision-support arrangements under this Act for people who currently, or may shortly, face challenges when making certain decisions.

1. Decision-Making Assistance Agreement

A person who has substantial capacity will be able to choose someone they know and trust to be their decision-making assistant. This is written down in a Decision-Making Assistance Agreement.  The person will make all decisions themselves – for example, about contacting a bank or healthcare provider, or accommodation and employment issues. The assistant will merely gather relevant information and explain it to the relevant person, who makes the decision themselves.

2. Co-Decision-Making Agreement

If someone needs greater assistance, they will be able to choose someone they know and trust to be their co-decision maker.  This is written down in a Co-Decision-Making Agreement.  The co-decision maker’s role is to make certain decisions jointly and together with this person.  Any joint decision made must reflect the wishes of the relevant person.
There was some concern from family members that a vulnerable person could be subject to undue influence with regard to a Co-Decision-Making Agreement.  Only in April 2022, the All Party Oireachtas Committee on Disability recommended that Independent Advocates should be available to assist relevant persons in appointing a supportive decision-maker.  This is a very sensible move.

Furthermore, the DSS has certain stipulations when the relevant person and a co-decision-maker apply to register a co-decision-making agreement:

They must tell close family members about the agreement

They must give close family members a copy of the agreement

Any of those close family members have five weeks to object to the registration of the agreement. There are specific grounds on which an objection can be made.

When the DSS receives an objection, it will be reviewed.  If it is believed that there are grounds for the objection, the court will decide if the agreement should be registered.

3. Decision-Making Representation Order

Arguably, the aspect of this area most in need of reform is our Ward of Court system.  Currently in Ireland, if a person is unable to make decisions about their property, money and other affairs because of capacity difficulties, the only option is for that person to be made a Ward of Court.  This is a legal process set out under the Lunacy Regulation (Ireland) Act 1871.  By the very title of the legislation, we can see how antiquated it is and that reform is essential.

An application for a person to be made a Ward of Court is made to the High Court.  When a person is made a Ward of Court, it means that they are no longer legally allowed to make decisions about their lives.  This can include everyday decisions.

A Committee is appointed by the High Court to control the Ward’s property and money and their overall care.  The President of the High Court must consent to medical treatment for the Ward.  A Ward of Court cannot leave the country or make a will without the permission of the President of the High Court.  There is over €2 billion in assets held for Wards of Court currently.

The new legislation abolishes the Wards of Court system.  The Court Committee will no longer control the person’s property.  Instead, the Court will appoint a Decision-Making Representative to make certain decisions and will take into account the person’s wishes where possible.  Someone known and trusted by the applicant will be appointed.  However, if there is no-one willing or able, the Court will appoint someone from the DSS panel of trained experts.

What will happen to current Wards of Court?

Everyone who is currently a Ward of Court will have their capacity assessed and brought under the new legal framework within 3 years of commencement of the Act.

The Act also allows for planning for a time when a person might lose capacity in 2 types of future planning arrangements, known as Advance healthcare directives and Enduring Power of Attorney.
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