In December 2015 a very important piece of legislation – the Assisted Decision- Making (Capacity) Act, 2015 was passed by the Oireachtas and signed into law. The Act reforms Irelands capacity legislation which has been in place since the 19th Century and it establishes a modern statutory framework to support decision making by adults who have difficulty in making decisions without help. While it was expected the legislation would come into operation during 2016 unfortunately only a limited number of provisions of the Act have been commenced. This is a progressive and reforming piece of legislation and will be of immense assistance to vulnerable adults who are experiencing difficulties with decision making whether due to intellectual disabilities, acquired head injuries or old age.
Assisted Decision-Making (Capacity) Act 2015
In December 2015 a very important piece of legislation – the Assisted Decision- Making (Capacity) Act, 2015 was passed by the Oireachtas and signed into law. The Act reforms Irelands capacity legislation which has been in place since the 19th Century and it establishes a modern statutory framework to support decision making by adults who have difficulty in making decisions without help. While it was expected the legislation would come into operation during 2016 unfortunately only a limited number of provisions of the Act have been commenced. This is a progressive and reforming piece of legislation and will be of immense assistance to vulnerable adults who are experiencing difficulties with decision making whether due to intellectual disabilities, acquired head injuries or old age.
The Act envisages different types of decision making support arrangements are necessary to respond to the range of support needs that people may have. These are;
Assisted Decision Making
Where a person considers their capacity is in question or may shortly come into question that person may appoint a Decision Making Assistant to assist them to access information or to understand, make or express decisions about their welfare, property and affairs. The Decision Making Assistant will not make the decision and any decision made will be taken as having been made by the person only. The appointment of such a Decision Making Assistant will require to be in writing.
Co Decision Making
Where a person considers that their capacity is in question or may shortly come into question that person may appoint someone else to jointly make with them one or one decisions about their welfare, property and affairs. The role of the Co-Decision Maker is to assist the person to obtain all necessary information and to discuss any alternatives and likely outcomes. Again any such appointment will require to be in writing.
Decision Making Representative
The Act provides for intervention by the Courts in certain circumstances where it is believed a person lacks capacity to such an extent that they require decisions to be made on their behalf entirely by someone else.
The 2015 Act will also make certain changes in respect of Enduring Powers of Attorney, Advanced Health Care Directives and the existing Wards of Courts system.
Enduring Power of Attorney
The Act will ultimately replace, once enacted, the Powers of Attorney Act 1996 and the scope of authority of Enduring Powers of Attorney will be extended under the 2015 Act in that it may confer authority on an Attorney to make decisions about the Donors personal welfare. Personal welfare is defined to include accommodation, participation by the Donor in employment, education or training and in social activities, social services, healthcare and other matters related to the Donors wellbeing.
Advance Health Care Directives
Advanced Health Care Directives have been recognised in Common Law for some time but the new Act provides for the first time a legislative framework. Under the Act a person aged eighteen years and over and who has capacity can make an Advanced Health Care Directive. The Advanced Health Care Directive will only come into force when capacity is lost. It is intended that such Directives will assist health care professionals as it provides them with important information about a person and their preferences in relation to treatment. While a refusal of treatment must be complied with (if the treatment and circumstances are clearly identified in the Advanced Healthcare Directive) a request for specific treatment is not legally binding.
Wards of Court
Under the existing Wards of Courts system a committee is appointed to control a person’s assets on their behalf. It is anticipated that once the Act is commenced in its entirety that the existing Wards of Court system will be eliminated through a process of review. This process will involve each Ward being reviewed by the High Court or Circuit Court. If the Ward of Court is deemed not to be lacking in capacity it is envisaged that they will be discharged from wardship and their property returned to them. If they are deemed to be lacking in capacity in relation to a particular decision then they will be discharged from wardship but will come under the new arrangements as provided for in the 2015 Act where the former Ward may appoint a Co-Decision Maker or in the alternative a Court may appoint a Decision Making Representative.
Denis O’Sullivan is a Solicitor with Collins, Brooks & Associates, Clonakilty and is a Member of the Society of Trust & Estate Practitioners (STEP) and a Member of the Solicitors for the Elderly.