The Assisted Decision-Making Capacity Act 2015 was signed into law by the President in December 2015. To date only limited provisions have been commenced. S.I. 515 / 2006 and S.I. 517 / 2006 brought into operation provisions to enable the recruitment of the Director of the Decision Support Services and the establishment of a multi-disciplined working group to make recommendations to the Director in relation to codes of practice.
The Act repeals the Lunacy Regulations (Ireland) Act 1871 and will replace the Powers of Attorney Act 1996.
Section 3 of the Act provides for assessment of the Relevant Person on a “functional” basis whereas previously the relevant person was assessed on a “status” basis.
The definition focuses on decision making and in particular the person’s ability to understand the nature and consequences of a decision to be made in the context of the available choices at the time the decision is made. However, it explicitly excludes capacity on consent required in relation to marriage, civil partnership, judicial separation, divorce, placing a child for adoption, the making of adoption orders, guardianship, sexual relations, serving as a member of a jury or making a will.
The Relevant Person may appoint either a Decision Making Assistant or a co-Decision Maker. The former’s role is limited to advising the relevant person, ascertaining their will or wishes and ensuring the decisions are implemented even where a Decision Making Assistant considers the relevant person’s decision unwise provided no harm comes to the relevant person or another person. The latter provides for a joint decision in relation to the relevant person’s welfare or property. The agreement must be registered with the Office of the Director of Decision Support Services which replaces the Office of the Wards of Court. The Decision Making Assistant must file a report every 12 months which must be approved by the Relevant Person. The Director must conduct a review every 3 years.
The Circuit Court may appoint a Decision Making Representative or make a Decision Making Order on behalf of the Relevant Person. The powers of the Decision Making Representative are determined by the Court. The Director must keep a register of Decision Making Representatives and the Decision Making Representative must file a report every 12 months.
The current Ward of Court system will be eliminated within 3 years of the commencement of the Act by means of a review which will, if appropriate, discharge the Ward and return property or bring the Ward within the new regime. The Act also extends the authority of an Attorney under Enduring Power of Attorney by extending the definition of personal welfare although advance health care directives are excluded but can be made subject to compliance with strict criteria. Procedures and requirements are clearly set out as is the procedure for revocation.
The Attorney must file a report to the Director every 12 months and where appropriate a schedule of assets and liabilities must be submitted.
The system with regard to co-Decision Makers, Decision Maker Representatives and Health Care Representatives is overseen by the Director of Decision Support Services. The similar oversight does not exist in relation to the Decision Making Assistant. However, any of the above who mistreats or wilfully neglects the relevant person will be guilty of an offence. The Act also provides for criminal offences in relation to fraud in respect of a co-Decision Making Agreement and Powers of Attorney.
