The Act proposes to change the law from the current all or nothing status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that s/he also lacks capacity in another matter. The Act recognises that capacity can fluctuate in certain cases and changes Irish law from the current all or nothing status approach to a functional capacity assessment.
Decision Making Support Options
In summary, when the Act is commenced it will introduce three types of decision-making support options to respond to the range of support needs that people may have in relation to decision-making capacity. With each of the three decision-making support options decisions can be made on personal welfare, property and finance or a combination of both. The support options are as follows:
Assisted decision-making: a person may appoint a decision-making assistant – typically a family member or carer – through a formal decision-making assistance agreement to support him or her to access information or to understand, make and express decisions. Decision-making responsibility remains with the person. The decision-making assistant will be supervised by the Director of the Decision Support Service.
Co-decision-making: a person can appoint a trusted family member or friend as a co-decision-maker to make decisions jointly with him or her under a co-decision-making agreement. Decision-making responsibility is shared jointly between the person and the co-decision-maker. The co-decision-maker will be supervised by the Director of the Decision Support Service.
Decision-making representative: for the small minority of people who are not able to make decisions even with help, the Act provides for the Circuit Court to appoint a decision-making representative. A decision-making representative will make decisions on behalf of the person but must abide by the guiding principles and must reflect the person’s will and preferences where possible. The functions of decision-making representatives will be as limited in scope and duration as is reasonably practicable. The decision-making representative will be supervised by the Director of the Decision Support Service.
Current Wards of Court
In summary, when relevant provisions of the Act come into operation it will no longer be possible to make a new application to make an individual a Ward of Court where they are unable to manage their assets because of mental incapacity. The decision support options in the Act shall apply.
When Part 6 of the Act comes into operation, a wardship court will be tasked with reviewing and discharging from wardship existing Wards of Court within three years of the commencement of Part 6. Alternative decision making supports will be put in place for former Wards where deemed necessary and appropriate by the wardship court.
Enduring Powers of Attorney
When Part 7 of the Act comes into operation, it will put in place provisions similar to the Powers of Attorney Act 1996. Under the Powers of Attorney Act 1996, a person can create an enduring power of attorney appointing an attorney to make decisions on his or her behalf in relation to property and finance or personal welfare or a combination of both. The Act expands these powers to include health care matters. It requires attorneys appointed under the Act to abide by the guiding principles and to be subject to supervision by the Director of the Decision Support Service who will also have the role of registering new enduring powers of attorney.
Advanced Healthcare Directives
When Part 8 of the Act comes into operation, it will make provision for advance healthcare directives. The purpose of the advance healthcare directive is to enable a person to be treated according to their will and preferences and to provide healthcare professionals with important information about the person in relation to their treatment choices. A person may, in an advance healthcare directive, appoint a designated healthcare representative to take healthcare decision on his or her behalf when he or she no longer has the capacity to make those decisions. Designated healthcare representatives will be supervised by the Director of the Decision Support Service.
Role of the Courts
The Act provides that the Circuit Court will have jurisdiction on most issues arising under this legislation. It is anticipated that the specialist judges will undertake this work. The Act provides that the High Court will continue to have jurisdiction in relation to matters relating to withdrawal of life-sustaining treatment and donation of an organ from a living donor.
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