The introduction of Ireland’s Assisted Decision-Making (Capacity) Act 2015 has been nothing short of a generational shift in the nation’s approach to capacity law. By replacing the old, binary wardship system with a more nuanced, rights-based framework, the legislation has positioned autonomy and the will of the individual at its core. This represents a departure from paternalistic practices, seeking to empower vulnerable individuals with tailored decision-making supports.
The implications of this change reach well beyond the legal profession, affecting families, caregivers, healthcare professionals, and anyone who may find themselves navigating these processes. Here’s what you need to know about this landmark shift and how it impacts you.
From Paternalism to Empowerment: What Has Changed?
Under the old wardship model, decisions about an individual’s life were often made without meaningful account of their wishes. If a person was deemed “of unsound mind,” they automatically lost their right to make decisions across the board. This all-or-nothing approach left little room for nuance.
With the full enactment of the Assisted Decision-Making (Capacity) Act 2015, Ireland has embraced functional capacity assessments. Now, capacity is evaluated on a decision-by-decision basis, reflecting the situational and often fluctuating nature of mental capacity. Section 8 of the Act explicitly stipulates that a person’s will and preferences must be supported wherever possible, representing a sea change from the previous framework.
For example, a person may have full capacity to make decisions about their day-to-day finances but struggle with more complex matters such as property transactions. The new legislation insists that appropriate supports, such as simplified communication tools or participation from a co-decision-maker, are provided to facilitate the individual’s autonomy.
A Tiered Approach to Decision-Making Support
The Act introduces a tiered model for decision-making support, ranging from minimal assistance to full representation through a decision-making representative (DMR). The options include:
- Decision-Making Assistance Agreements: Individuals retain full decision-making capacity but receive support to collect and interpret relevant information.
- Co-Decision-Making Agreements: Decisions are made jointly between the person and a designated co-decision-maker.
- Decision-Making Representation Orders: A court-appointed representative steps in when specific decisions cannot be made, even with other forms of assistance.
Crucially, the DMR must respect the individual’s expressed will and preferences rather than substituting their own notion of “best interests.”
But this approach is not without its challenges. Balancing individual autonomy with genuine concerns for safety can be complex. For instance, in the Matter of MA (2024), the High Court upheld a structured residential placement for a vulnerable individual despite their preference to live independently, recognising that the specific support environment was essential for their wellbeing. Practical dilemmas like these underscore the need for nuanced applications of the Act’s principles.
Practical Impacts on Everyday Lives and Families
The Role of Families
Family members often play a pivotal role in supporting individuals with diminished capacity. However, family dynamics can sometimes complicate the process. Disputes over who should act as a decision-maker are not uncommon, especially when personal interests clash.
For instance, in the Joan Doe Case (2023), siblings were deemed unsuitable as DMRs due to significant family conflict. Instead, the court appointed an independent representative from the Decision Support Service (DSS) panel to ensure the person’s autonomy and welfare were prioritised. This case highlights the importance of safeguarding the individual’s will, even when well-meaning family members are involved.
The Functional Capacity Assessment
Assessing capacity now requires a granular, detailed approach. Medical assessments must confirm not only a diagnosis but also how that diagnosis impacts specific decisions. The CF Case (2023) reaffirmed that broad labels like “dementia” are insufficient; an individual’s ability to understand, retain, and evaluate information must be evaluated for each distinct decision.
Solicitors working in this area play a key role in ensuring that assessments focus on empowering individuals rather than prematurely stripping them of decision-making power. This tailored process reinforces the Act’s fundamental ethos.
Challenges in Amplifying the Individual’s Voice
One of the Act’s most significant commitments is ensuring the “voice” of the relevant person is heard. However, this can be particularly complex when participation causes stress or becomes impractical due to the individual’s condition. Some individuals may find formal court appearances intimidating, further complicating the ability to convey their preferences.
The inclusion of independent solicitors or advocates in these cases has proven invaluable. These professionals help capture and present the individual’s wishes to the court without introducing unnecessary strain. The AB Case (2024) reiterated the need to understand and honour the preferences of the individual, even when communication is limited.
Ethical Considerations in Decision-Making
The Act also introduces the concept of the “dignity of risk,” emphasising that autonomy means allowing individuals to make choices—even risky ones. Section 38 acknowledges the tension this creates but asserts that misguided paternalism should not override personal autonomy unless absolutely necessary.
For solicitors and caregivers, these scenarios can be morally and professionally challenging. Guiding clients through financial risks or controversial decisions may be difficult, but the Act insists that autonomy, not safety, should serve as the primary guiding principle unless clear risks demand otherwise.
Navigating the Framework with Expert Support
The Assisted Decision-Making (Capacity) Act 2015 offers a blueprint for ensuring that vulnerable individuals are treated with dignity and respect. However, its practical application requires careful navigation. Whether you’re a family member, caregiver, or professional, understanding how to interpret the Act is crucial for achieving the right outcomes.
At HOMS Assist, we specialise in helping clients implement these new frameworks effectively. From establishing Advance Healthcare Directives to supporting families in contentious decision-making processes, our team provides clear, empathetic guidance tailored to individual needs.
If you’re dealing with capacity-related decisions, or simply planning for the future, contact us today. We’ll help ensure that every decision honours autonomy, dignity, and the preferences of the individual.
