The Assisted Decision-Making (Capacity) Act 2015 is a law intended to offer assistance to people who need additional support in making decisions in relation to their own affairs. The act is applicable to people with particular disabilities, mental health difficulties, illness or other challenges where his or her capacity to make a decision is in question. It applies to current wards of court who will be discharged from their wardship, and if they are found to still have capacity issues will be offered support most appropriate to their needs.
It has been signed into law but the provisions have not fully taken effect as of yet. Unlike the previous legal framework, this act provides that people’s ability to take decisions can vary from time to time and from decision to decision; capacity is not a black and white issue.
The act abolishes the crude, rigid and archaic wardship system, which stripped vulnerable people of their rights to make any decisions for themselves if they had been found to have a lack of capacity. The Assisted Decision-Making (Capacity) Act is a positive and progressive move to promote the rights of vulnerable people and those with disabilities, and allow them to keep their own agency where possible.
The Act provides for three different support measures in order to balance the best interests and the autonomy of vulnerable people. Capacity will be assessed in relation to the particular decision at hand, and the finding of capacity will only apply to the particular decision.
There will be three types of decision-making supports. Firstly, Assisted Decision-Making is where the vulnerable person appoints a trusted family member or friend to support, advise and help access information. The person remains responsible to make their own decision, but will be doing so with support. The Assistant must report back to the newly formed Decision Support Service (DSS), in order to protect the vulnerable person.
The next mechanism is Co-Decision-Making where the vulnerable person can appoint a trusted person to jointly make decisions with him or her. It will be a joint decision, and the co-decision-maker will be obliged to report back to the DSS.
The most formal mechanism is where a Decision-Making Representative is appointed by the Circuit Court. The Representative may make decisions on behalf of the vulnerable person, but must respect the person’s wishes and preferences where possible, and must follow as set of principles. The Representative will be appointed for as short a time as possible, and with as limited a role as possible so that the vulnerable person retains as much autonomy as possible. The Representative will report to the DSS.
The above is provided for information purposes and is not intended as legal advice. If you have any questions about assisted decision-making we, at Fitzsimons Redmond, would be happy to advise you on your next steps. Please contact us on 01-676 3257.
By Lisa Quinn O’Flaherty
Partner at Fitzsimons Redmond LLP