With The Assisted Decision-Making (Capacity) Act, 2015 scheduled to be fully commenced in June 2022, Senior Associate Samantha Holton of the firm, gives a brief overview of the key reforms it seeks to effect.
The Assisted Decision-Making (Capacity) Act, 2015 (‘the Act’) was signed into law on 30th December 2015 and some seven years later, the Act is due to be fully commenced in June 2022.
The cornerstone of the Act is to provide for the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or in the future. The Act will introduce, for the first time, a statutory presumption of capacity and will embody the ethos of the United Nations Convention on Rights of Persons with Disabilities. It will endeavour to safeguard the rights of vulnerable persons. The guiding principle is to support people to make their own decisions as far as possible.
Presumption of Capacity
Article 12 of the United Nations Convention on Rights of Persons with Disabilities states that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Section 3 of the Act encapsulates that ethos and provides that a person’s capacity shall be assessed on the basis of his or her ability to understand at the time that a decision is to be made and the nature and consequences of the decision in the context of available choices.
A person will be deemed to lack the capacity to make a decision if he or she is unable:
- (a) To understand the information relevant to the decision;
- (b) To retain that information long enough to make a voluntary choice;
- (c) To use or weigh that information as part of the process of making the decision; or
- (d) To communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate with that third party.
The ability to retain information relevant to a decision for only a short period shall not prevent a person from being regarded as having capacity.
The fact that a person lacks capacity in respect of a decision on a particular matter or at a particular time will not prevent him or her from being regarded as having capacity to make decisions on other matters or on the same matter at a different time. Under the Act, the assessment of capacity will be functional and will be time and issue-specific. An unwise decision shall not be deemed to demonstrate incapacity.
The Act will abolish Adult Wardship under the Lunacy Regulation (Ireland) Act, 1871.
Under Part 6 of the Act, all current adult Wards of Court will transition out of Wardship within three years of the commencement of the Act. The Wards of Court office will no longer be accepting applications for Wardship from 22 April 2022 (unless there are urgent grounds for making an application).
It will also repeal the Marriage of Lunatics Act, 1988 (as commenced on 1st February 2021).
The test for capacity will henceforward be a functional test and will be time-specific and issue-specific.
The Act will also establish a three-tier framework of support for the relevant person, that is the person for whom the Act is designed to protect.
The Act will introduce a new three tier framework of support for Assisted Decision-Making.
- i. A Decision-Making Assistant (DMA) is appointed by the relevant person to help explain obtain, explain and communicate the decision. The relevant person will still make the decision.
- ii. A Co-Decision Maker (CDM) is appointed by the relevant person to make specified decisions jointly. This appointment is registered with the Director of Decision Support Services (DSS) and there are capacity statements required by the DSS. The CDM will be obliged to report to the DSS.
- iii. A Decision-Making Representative (DMR) will be appointed upon application to the Court. The Circuit Court will have jurisdiction to hear and decide upon such applications except for some matters reserved for the High Court. The Decision-Making Representation Order (DMRO) will be limited in time and scope. The DMR make be appointed from a panel and the Order registered with the DSS. The DMR will report to the Director of Decision Support Service (DSS).
Types of Decisions to which the Act applies
The categories of decisions to which the principles of the Act apply, include decisions around:
- 1. Property and Affairs including:
- • Custody, control and management of property;
- • Sale, exchange, mortgage, gift etc. of property;
- • Acquisition of property;
- • Carrying on a business;
- • Share purchase agreements;
- • Discharging debts and liabilities;
- • Providing for other persons;
- • Conduct of Court proceedings; and
- • Applying for benefits.
- 2. Personal Care Decisions including:
- • Accommodation;
- • Education and Training;
- • Social Services;
- • Healthcare; and
- • And other matters relating to relevant person’s wellbeing.
Proposed Changes to Enduring Powers of Attorney
Prior to the full commencement of the principle Act, it is expected that the Assisted Decision-Making (Capacity) (Amendment) Bill will be enacted. Key proposed amendments in the Heads of Bill include a new enduring power of attorney (EPA) format to include the introduction of a new two stage process for registration and notification of EPAs to the DSS. It will require the registration of an EPA to take place within five weeks of the execution of the EPA. The DSS will establish a register of EPAs.
The Amendment Act also proposes new requirements for formal capacity statements in addition to the requirement that EPAs under the 2015 Act will be subject to reporting and supervision by the DSS.
A complaints and investigation procedure will be established under the Amendment Act to deal with cases where there are complaints made over the way in which the attorney is handling the affairs of the Donor. For example, this procedure would be used if it is believed the Attorney is acting beyond the scope of the EPA, is unsuitable to act or is not giving due consideration to the will and preferences of the Donor. The Director can also investigate allegations that the Attorney is acting in a fraudulent or coercive way or is exercising undue influence. The Director can appoint a special visitor, gather evidence, summon witnesses and if required, refer the matter to Court for civil adjudication or criminal investigation depending in the circumstances of the complaint made.
While all EPAs executed under the Powers of Attorney Act 1996 will remain valid following the enactment of the Amendment Act, the complaints and investigation procedures will apply to them.
All decisions regarding medical treatment will be removed from the scope of EPAs and will be confined to Advanced Healthcare Directives (AHD) which will be given statutory recognition for the first time and will allow for the appointment of Healthcare Representatives. The recognition of Advanced Healthcare Directives, made by a person with capacity, will enable persons to be treated according to their will and preferences and will provide healthcare professionals with information in relation to treatment course.
Crowley Millar Solicitors LLP Disclaimer: This is a general information note and is intended for information only. It does not constitute legal advice and should not be regarded as a substitute for legal or other professional advices. Such advice should always be taken before acting on any of the matters referenced in this information note.