Protecting interests of family members with reduced mental capacity

Making decisions on behalf of family members whose mental capacity has been reduced either through an acquired brain injury, mental disability, or illness can be challenging. The Assisted Decision-Making (Capacity) Act 2015 recognises the rights of persons with intellectual disabilities to make decisions for themselves. The new law creates a modern statutory framework to support decision-making by adults who find it challenging to make decisions without help.  The changes to be brought about by the Assisted Decision-Making (Capacity) Act, when it is commenced, have been discussed for many years. But change is now imminent.

The state will recognise that people with disability now have the same legal capacity as other members of society. It sets out different tiers of assistance with decision making:

  • DMA – a decision-making assistant. This is the lowest level of assistance with decision-making
  • CDM – co-decision-maker. This is a middle tier of decision-making. If a decision made could cause harm, the co-decision-maker is not required to follow through on it.
  • DMR - a decision-making representative. The court may appoint a DMR if the middle tier is not sufficient.  

The current regime of wardship remains in place until the act is commenced, and will continue to exist for a period of three years. Once commenced, no applications will be made to the Wardship Court for a declaration under wardship.

If you require assistance safeguarding the interests of a loved one with restricted mental capacity, contact your solicitor for advice