Assisted Decision Making (Capacity) Act 2015

What is the Assisted Decision Making (Capacity) Act 2015?

The much-debated Assisted Decision Making (Capacity) Act 2015 (the “Act”) was enacted on the 30th December 2015, but requires commencement orders to bring it fully into effect. Recently piecemeal sections of the Act have been commenced, however the more comprehensive sections remain in limbo. The Act provides for a new test for capacity, creates a concrete framework to assist individuals in making decisions, radically overhauls the antiquated Wards of Court system, modifies the law regarding Enduring Powers of Attorney (EPOA), and creates a new legal office – The Director of the Decision Support Service.


Capacity Prior To The Enactment Of The Assisted Decision Making Act

Capacity refers to an individual’s ability to make their own decisions. Prior to the enactment of this legislation, capacity was black or white – an individual either had or did not have capacity. An EPOA could have been put in place prior to incapacity, appointing an attorney who would act for them if incapacity was suffered at some point in the future. If no EPOA was executed, the only legal mechanism for those deemed incapacitated was wardship, whereby the person fell under the supervision of the High Court and a committee appointed to assist. The wardship system relies heavily on medical evidence and is essentially a cognitive skills test, and has long been held to be an unreliable proof that a person has lost capacity to manage all of their affairs.


Capacity Under The Assisted Decision Making Act

The legislation has seen a shift to the broad-minded functional test for capacity, that is an issue and time specific test and it is altogether more different to the all or nothing test that exists for wardship. This functional approach allows for changes in a person’s capacity over time. Capacity for decision-making is defined as the ability to understand, at the time the decision is being made, the nature and consequences of the decision in the context of the available choices.

A person lacks the capacity to make a decision if they are unable to:-

  • Understand the information relevant to the decision
  • Retain that information long enough to make a voluntary choice
  • Use or weigh that information as part of the process of making the decision, or
  • Communicate their decision.

However, a person should not be said to lack capacity if they:-

  • Require information to be explained to them in a way that is appropriate to their circumstances
  • Can only retain the relevant information for a short period of time
  • Did lack capacity for a particular decision at one time but may no longer lack capacity to make that decision
  • Lack capacity for some decisions but have capacity to make decisions on other matters.

The Assisted Decision Making (Capacity) Act 2015 introduces a system of support, giving those with diminished capacity greater autonomy, enabling them to have their own voices heard, and facilitated.


Decision Making Support Structures

a) Decision-Making Assistant

The assistant will help the person making the decision to obtain the information needed to make the decision, explain the information to the person and obtain the person’s will and preference in relation to the decision. The assistant will also communicate the decision if necessary and follow up on the decision to ensure it is implemented. The appointment is done by way of a formal written agreement, the content and formalities of which are the subject of Ministerial Order (which is awaited).

b) Co-Decision-Making

An individual may appoint someone else to jointly make one or more decisions about their welfare and property and affairs. The co-decision-maker will obtain the information needed, advise on decisions and make decisions jointly with the appointer based on their will and preferences. The co-decision maker will help the person express a decision and ensure that the decisions are implemented. A written agreement setting out amongst other things, the types of decisions that will require intervention, must be registered with the Director of the Decision Support Service within five weeks of signing. It does not come into force until registered. Notice of registration of this agreement must be given to certain specified family members who may object to registration proceeding. Each Agreement is reviewed by the Director of the Decision Support Service. The Co-Decision-Maker must file a report with the Director every year, setting out what they have done during the period, including details of all transactions relating to the person’s finances, together with details of any costs and expenses paid.


Decision Making Representative

The Assisted Decision Making 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. This is a court appointed representative. Essentially this appointment applies to individuals who cannot make decisions even with assistance, whose incapacity is much more acute than for the options set out above.


Wards Of Court Procedures

The Act will eventually see the end of wardships, with no new wardships once the Act is commenced. There are presently 2,600 wards of court. Given the divergence of capacity requirements, it may be found that some wards of courts have capacity, and if so they will be immediately discharged from wardship and their property returned to them. Where a ward is declared to lack capacity, the court may discharge the person on registration of a Co-Decision-Making Agreement. Where the ward is declared to lack capacity even with the appointment of a Co-Decision-Maker, a Decision-Making Representative will be appointed and the property of the ward returned to them.


Enduring Powers Of Attorney

A new regime for EPOAs is to be introduced which will be similar to the current system of 1996 EPOAs. However there are fundamental differences including the execution and registration process containing more safeguards, regular reporting and accounting obligations of attorneys to the Director and complaints procedures to the Director with powers of investigation.


Summary Of The Assisted Decision Making (Capacity) Act 2015

The Assisted Decision Making (Capacity) Act 2015, once commenced, will bring in:-

  • A new test for capacity
  • Decision making support structures
  • Decision making representatives
  • An end to wardship
  • A new regime for enduring powers of attorney.

Get in touch

Nationwide services with dedicated offices in

Dublin

2-4 Ely Place, Dublin 2, D02 FR58

Limerick

Bishopsgate, Henry Street, Limerick, V94 K5R6

Cork

1A South Mall, Cork, T12 PV44

Share this page

OTHER SERVICES

service

Estate Planning Solicitor: Wills, Probate and Trusts

HOMS Assist provide swift case resolution and a personalised service. Contact us for all private wealth cases such as Wills and Powers of Attorney.

service

Property Law Solicitors

HOMS Assist provide swift case resolution and personalised service in Dublin and Limerick. Contact us today to discuss property law matters.

service

Medical Negligence Claims

HOMS Assist have 50+ years’ experience in offering medical negligence solicitor services in Ireland. Contact us today for expert advice and prompt case settlement.

RELATED ARTICLES

Seeking Legal Advice for Medical Treatment Delays

News Article

Addressing the Consequences of Delayed Medical Treatment

Expert Legal Guidance for Animal-Related Personal Injury Claims

News Article

Understanding Liability for Animal-Related Injuries

Assisted Decision-Making (Capacity) Act 2015: AB Ruling Clarifies Rights-Based Principles

News Article

Assisted Decision-Making (Capacity) Act 2015: AB Ruling Clarifies Rights-Based Principles

Seeking Justice and Compensation After a Lift Incident | Trusted Lift Accident Solicitors

News Article

A Guide to Psychiatric Injury Claims Due to Being Trapped in a Lift

How Lower Interest Rates and Government Support are Opening Doors for First-Time Buyers

News Article

How Lower Interest Rates and Government Support are Opening Doors for First-Time Buyers

Understanding the Balance of Probabilities in Civil Courts |

News Article

Understanding the Civil Law “Balance of Probabilities” in Personal Injury Claims

What we offer

We are an award winning, client-oriented law firm in Dublin, Limerick and Cork. Our solicitors provide comprehensive legal advice in an approachable and caring manner. Most of us will require a solicitor at some time in our lives. When the time comes that you do require legal support you will want to be sure that you are dealing with professionals who will work quickly and efficiently to help you. So whether you need help writing a Will, you have been in an accident, suffered an injury or illness that was not your fault, or you are looking at divorce options, we can offer clear guidance and representation to assist you in obtaining the optimum result.

Request a callback

Fill out the form below, and we will contact you shortly. Required fields are marked *

Sign up to our newsletter today

Scroll to Top