)
The Assisted Decision-Making (Capacity) Act of 2015 (the “2015 Act”) as amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022 is due to commence in its entirety on the 26th of April 2023 following a recent statement by the Minister for Children, Equality, Disability, Integration and Youth and Minister for State for Disability.
The much-anticipated Act brings about sizeable change to the decision-making autonomy of all individuals, but it will have relevance for persons with disabilities, older persons or persons with diminished capacity due to injury.
The 2015 Act (as amended) introduces a modern framework of supported decision making to support individuals to make their own decisions and choices, with dignity, respect and the wills and preferences of the Decision-Maker being the centre of the process.
The presumption of capacity is the core principle of the 2015 Act – a person is presumed to have capacity until it is proven otherwise. In a situation where a person’s capacity is called into question, their capacity will be assessed based on their ability to make a specific decision at a specific time. This is known as the ‘functional assessment of capacity’ which weighs up the person’s ability to:
Understand the information relevant to the decision
Remember the information long enough to make a choice
Use or weigh up the information
Communicate a decision (can be with assistance)
If an individual is deemed to lack capacity to make a specific decision, a hierarchy of decision-making supports are introduced in the 2015 Act to support the individual to make decisions reflective of his or her own wills and preferences.
If the decision-maker is deemed to lack capacity in the context of a healthcare decision, the Advanced Healthcare Directive will take precedence:
The Advanced Healthcare Directive is essentially a document which sets outs an individual’s instructions in relation to healthcare treatments they wish to refuse or request in anticipation of a lack of capacity in the future. This document provides healthcare workers with important information on a person’s wills and preferences and comes into effect when a person is considered to lack capacity to make decisions.
Outside of the context of healthcare, the Enduring Power of Attorney will take precedence:
The Enduring Power of Attorney is defined in the 2015 Act as an arrangement whereby a Donor (being the person who may lack capacity in the future) gives a general power to an Attorney (the person providing assistance) to act on their behalf.
If the individual has not put in place an Advanced Healthcare Directive or an Enduring Power of Attorney, an array of Circuit Court-appointed Decision Supporters can be appointed under the 2015 Act. Decision Supporters come in the form of Decision-Making Assistants, Co-Decision-Makers or Decision-Making Representatives:
The role of a Decision-Making Assistant is to gather information to ascertain an individual’s wills and preferences in a matter and assist the individual to make or express that decision. The decision made will be that of the individual, not the decision-making assistant.
The role of the Co-Decision-Maker is to work jointly with the individual in making decisions on personal welfare, property or other affairs. The co-decision-maker will get the information to assist the individual in making informed decisions, advise on decisions and make decisions together based on the individual’s wills and preferences.
The role of the Decision-Making Representative is to make certain decisions on a person’s behalf. The court will list the decisions a DMR can make on another’s behalf and include property, money affairs and well as decisions about personal welfare. If possible, the court will appoint someone who the individual knows and trusts.
A person can apply to the court to become a Decision-Making Representative if they can show a true interest in the welfare of the person. An application is then made to the Circuit Court who will decide if they are suitable or not. If the court agrees, the Decision Support Services will be informed and a Decision-Making Representation order will be made.
If none of the abovementioned supports are in place, the Decision-Support Service (“DSS”), as established under the 2015 Act will assist the individual in appointing a Decision-Making Supporter at whatever level is appropriate in-line with the individual’s needs, and capacity.
The role of the DSS is multi-faceted and includes, among other things, supervising supported decision-making, the introduction of a panel of experts to act as decision-making representatives and investigating complaints under the 2015 Act. Individuals will soon be able to apply online on the DSS website and register supported decision-making arrangements.
The Courts Service have been working with the DSS, the Heath Service Executive and Non-Governmental Organisations to ensure the effective implementation of the 2015 Act, (as amended). New systems and processes have been introduced including a new ICT system and staff training as well as new Court rules to set out the procedure for applications involving Decision-Making supports.
The 2015 Act (as amended) brings about welcome change to how capacity is approached in the Irish Legal system as it moves moving towards a system more consistent with Ireland’s international human rights obligations whereby individuals are supported to make decisions for themselves based on their own wills and preferences.
About the Author: Caitriona Gahan is Head of Wills, Probate & Estate Planning.