The Assisted Decision Making Capacity Act 2015( “The Act”) was signed into Law by President Michael D. Higgins in December 2015 but the significant elements outlined below have not yet commenced. The Act signifies a substantial overhaul of the current law surrounding capacity. It repeals the outdated Lunacy Regulations (Ireland) Act, 1871.
The new Act works towards maintaining protection of vulnerable members of society while re-defining the definition of capacity. Before The Act, capacity was a straightforward test – you had it or you did not. Section 3 of the New Act assesses a Relevant Person’s (RP) capacity on the ability to understand the nature and consequences of a decision to be made by him or her in the context of the available choices at the time the decision is made. If the person can understand matters if they are presented in a different way (e.g. through pictures, this will also be taken into consideration in assessing capacity. ” An RP is defined in Section 2 of the New Act as a person who lacks capacity, whose capacity is in question, or may shortly be in question in respect of one or more matters.
Capacity can now be assessed on a case by case basis and takes into consideration each decision / agreement on its own merits. Therefore a RP may be deemed to have capacity to enter one agreement but not another. The nature of the decision, the circumstances and play and the RP’s ability to understand the effects of the decision are some of the factors taken into consideration. The New Act promotes a more inclusive society and recognises the various circumstances in which capacity may be assessed differently while still safeguarding the welfare of vulnerable persons. An important point to note is that the Act does not apply to capacity or consent required to enter into a marriage, civil partnership, judicial separation, divorce, adoption, guardianship, sexual relations.
Under the new regime the RP may appoint a Decision Making Assistant (DMA) or a Co-Decision Maker(CDM). The role of the DMA is advisory and their function is to determine the will of the RP and ensure any decisions made are implemented. As the name suggests, the CDM makes joint decisions with the RP regarding personal welfare or property. The CDM must be a relative or friend who has a fiduciary relationship with the RP. All agreements must be registered with the Office of Director of Decisions Support Services (The Director) and a report must be filed by the CDM every twelve months with the approval of the RP.
A Decision Making Representative (DMR) may be appointed by the Circuit Court to make a decision on behalf of the RP subject to the powers and restrictions put in place by the Court. The Director must keep a register of DMR’s who are required to file a report every 12 months.
Two of the main areas overhauled by the New Act are Enduring Powers of Attorney and Wards of Court which are briefly looked at below.
The Sections of the New Act applicable to Enduring Powers of Attorney have not yet commenced and EPA’s are still created and registered pursuant to the terms of the Enduring Powers of Attorney Act 1996. When the New Act comes into force, EPA’s that have been created and registered will still be valid.
Once commenced, all EPA’s will be created under the New Act. The Attorney can now extend the power decisions on behalf of the donor including giving and refusing medical treatment. The definition of personal welfare will now also include accommodation, employment, education and training, social activities and other personal welfare decisions. This will be a welcome change to the existing law and will provide the Attorney with more scope to assist the Donor (person who executes and EPA) in engaging in society and accessing services.
Vitally, provision of life sustaining treatment is dealt with in the Advanced Healthcare Directive created separately by the Donor and the Donor is restricted from dealing with life sustaining treatment in the Enduring Power of Attorney.
The Attorney will be obliged to file a report with the Director every 12 months. The changes to the Enduring Power of Attorney process are a subtle expansion on the powers already given to the Attorney. The revamp of the area aims to balance extending the discretion and autonomy of the Attorney while ensuring the protection of the Donor.
The current Ward of Court system will be completely replaced by the New Act. Although yet to commence, the New Act will implement a process of review for each ward over the age of eighteen. Each Ward must be assessed by the Court who made the original order within three years of commencement of Wardship. Where the Ward is deemed to have sufficient capacity, he or she will be discharged from Wardship. If capacity is lacking, the Ward will be released from Wardship to the new process whereby a CDM or DMR will be appointed on their behalf. Interim orders can be made where applications have yet to be determined by the Court. The new regime will assess the varying levels of capacity which will extend the level of independence current wards have.
It is unlikely that any change will take place to the Wardship and protection of minors.
Once enacted the new regime will bring in many welcome developments to the area of capacity and will assist the vulnerable members of society in living a more independent life and offer them greater inclusion in society. Safeguards and protections such a reporting to the Director and Court supervision will ensure that a RP is adequately protected.
For more information contact Jennifer Morrow, Solicitor in our Probate and Wills team.
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