Assisted Decision Making (Capacity) Act 2015
It is finally here! April 2023 marked the introduction and implementation of the Assisted Decision Making (Capacity) Act 2015 which is legislation to support vulnerable adults in their decision making.
This new act abolishes the current Ward of Court system, replacing it with a new 3-tiered system of decision support arrangements for people who need or may need assistance now or in the future with their decision making. This is a welcome move away from the Wardship mechanism which essentially recognized an ‘all or nothing’ status approach to capacity in favour of a more flexible and functional approach to the assessment of capacity.
Under the 2015 Act, a person will be presumed to have capacity and where a person’s capacity is questioned, it will be assessed based on the individual’s ability to make a specific decision at a specific time. This is called the ‘functional test’ of capacity. Therefore, it recognizes that an individual’s capacity can fluctuate at times and indeed can vary based on the particular decision to be made at a particular time.
Under the new Act, every adult will be presumed to have the capacity to make decisions unless it is otherwise determined. An individual will be considered to have capacity to make a decision if they can:
• Understand the information that is relevant to the decision.
• Remember the information long enough to allow them to make a decision.
• Weigh up that information in order to make the decision.
• Communicate their decision (with or without assistance).
The new Act recognizes an individual’s right to autonomy and self determination to be respected in all matters pertaining to their personal affairs and decisions.
There are now three new tiers of decision support available for those who currently or may shortly face challenges when making decisions:
1. Decision Making Assistance Agreement.
This type of agreement can be put in place where an individual has capacity however expresses a preference to appoint a Decision-Making Assistant to communicate on their behalf.
2. Co-Decision Making Agreement.
This mechanism can be put in place where a person considers that their capacity is in question or may shortly be in question and wishes to appoint another person (Co Decision Maker) to make joint decisions with them in respect of their personal welfare, property and affairs.
3. Decision Making Representative Order.
Where an individual is unable to make certain decisions and are found to lack capacity even if assisted by a Co-Decision Maker, the court will appoint someone called a Decision-Making Representative (DMR) to make those decisions on the individuals’ behalf.
This may be a familiar and trusted person known to the individual and someone who knows their will and preference. If it is not possible to appoint someone the individual knows and trusts, the court will select someone suitable from their panel of trained experts. The decision-making representative can only make decisions that are authorised and must consider at all times the individuals will, preference and wishes during the decision-making process.
This new Act introduces important safeguards. It establishes a new Decision Support Service (DSS) to oversee and supervise decision support arrangements. This includes the monitoring of decisions supporters and investigate complaints. The new act is a welcome move towards a new legal framework for supported decision-making in Ireland. It includes new statutory principles and practical supports for persons who may have difficulties with their decision-making capacity, including but not limited to persons with an intellectual disability, psychiatric illness, acquired brain injury, or age-related conditions such as Alzheimer’s or dementia.
All adult individuals who are currently in the ward of court system will now be reviewed for discharge from the Ward of Court office in line with the new three-tiered functional approach.
Should you or your loved one require information on the new decision support arrangements or require support or assistance in the discharge procedure from the current Ward of Court office, feel free to give us a call, we are here to help!