This Assisted Decision-Making Capacity Act 2015 was signed into law in Ireland on the 31st December 2015 and has not yet been commenced.
It is now due to be commenced later this year as Ireland has to comply with an obligation given to the UN to comply with its obligations under the United Nations Convention on the Rights of Persons with Disabilities from 2006.
Consequently I am now advised that the Act is going to be commenced in the second half of the year, some people say as early as June 2022.
Once commenced, the Act is going to bring wholesale changes into law which will affect every aspect of how anyone who has any form of capacity impairment will be dealt with or can have their affairs managed for them.
There will be a range of new concepts whereby, depending on the degree of disability, people can either appoint their own representative to assist them with their affairs or they can have someone appointed by the Circuit Court to manage their affairs for them.
The differing concepts of assistance agreements are:
- Decision-making Assistance Agreement. This will be where a person has a minor impediment and really only needs someone else to be nominated to explain things to them in a manner they can understand if they cannot manage that themselves. This agreement will be in writing. The decision making assistant will not be empowered to make the decision for the individual or to sign anything for them.
- Co-Decision Making Agreement. This will be the next level of agreement whereby a person can nominate someone else to both assist them in reaching decisions that are necessary but also to take the decision for them and sign necessary documentation on their behalf as necessary. This assumes the person still has capacity but needs a higher level of additional help and support than the decision making assistant agreement provides for.
- Decision-Making Representative. This is the highest level of substituted decision making provision there will be. Under this concept someone will apply to court to be appointed as a decision making representative for person who has very limited or no capacity to make any decisions either about their personal welfare or about their financial affairs. The decision making representative can be a family member or can be an independent person who will be nominated by the court from a panel of decision making representatives that is being put in place for the purposes. This concept will in effect be taking over from the existing Wards of Court system
A new Body called the Director of Decision Support Services (DSS) has been put in place and it will be charged with the oversight responsibility in relation to all of these matters.
In addition the new Act contains additional provisions in respect of Living Wills / Advance Healthcare Directives and this will bring a statutory framework to the area of the tricky concept of medical treatment and what a persons preference is if they are not in a position to express their will and preference while in hospital, and there are further provisions in respect of the concepts of Enduring Powers of Attorney which if enacted as per the current draft legislation will bring significant change to that area of law.
Overall the Act is going to bring in sweeping changes to how people lacking mental capacity are going to be dealt with and how their affairs are going to be managed.
We need to start a process of publicising this so that the awareness can start to be built nationwide.
If you or any member of your family is effected by these issues please get in touch
Mark Felton.
