Assisted Decision Making: Understanding the replacement for the Ward of Court System

At Patrick J Farrell Solicitors, we are committed to keeping you informed about significant legal developments that impact your rights and well-being. One such important advancement is the introduction of the Assisted Decision-Making (Capacity) Act, which brings substantial changes to the way decisions are made for individuals who may need support in managing their affairs. In this post, we will explore what the new “assisted decision-making” system entails under this legislation.

What is the Assisted Decision-Making Act?

The Assisted Decision-Making Act represents a progressive shift in the legal framework governing decision-making for individuals who may lack the capacity to make certain decisions independently. This Act aims to empower individuals by providing support mechanisms that respect their autonomy and preferences rather than defaulting to full control of their affairs by the Court , as had been the case. 

Moving Away from the “Ward of Court” System

Traditionally, when an individual was deemed unable to make specific decisions, they would be made a “ward of court.” Under this system, the Court would assume responsibility for that person’s personal welfare and financial decisions and a person would be appointed as ‘committee’ to oversee them. This process often involved lengthy legal proceedings and could limit the individual’s ability to participate in decisions about their personal and financial matters.

Under the Assisted Decision-Making Act, the emphasis shifts towards:

1. Supported Decision-Making: Instead of the Court controlling all of a person’s affairs, the Act encourages the use of support mechanisms to help people with their decisions. This includes family members, friends, or professionals who can assist the individual in understanding and making decisions while respecting their wishes and preferences.
2. Decision-Making Assistants: Individuals can designate trusted persons to help them make decisions. This role focuses on collaboration and support.
3. Advance Healthcare Directives: People can outline their preferences for future decision-making regarding their healthcare, ensuring their wishes are known and respected even if they become unable to communicate them later on.

Types of Agreements and Orders under the Assisted Decision-Making (Capacity) Act

The Assisted Decision-Making (Capacity) Act introduces several key instruments designed to facilitate supported and co-decision-making. Understanding these can help you make informed choices about how best to support yourself or your loved ones.

Assisted Decision-Making Agreements

A Decision-Making Assistance Agreement is a formal arrangement where an individual agrees to receive support in making specific decisions. This agreement outlines the areas where assistance is needed, the nature of the support, and the roles of those involved. It ensures that the individual’s preferences are central to the decision-making process, promoting autonomy and tailored support.

Co-Decision-Making Agreements

Co-Decision-Making Agreements involve collaboration between the individual and one or more supporters in making decisions. This shared approach leverages the strengths and insights of both parties, ensuring that decisions are well-informed and aligned with the individual’s values and desires. It fosters a partnership model, enhancing the quality and respectfulness of the decision-making process. For specified decisions (for example, selling property), both the individual and the Co  Decision Maker must join in the decision.

Decision-Making Representative Orders

A Decision-Making Representation Order involved the appointment by a Court to make decisions for an individual when they are unable to do so themselves. This appointed representative acts on behalf of the individual, ensuring continuity and consistency in decision-making. The Decision Making Representative may be a family member or someone independent appointed by the Court if there is no suitable family member. 

Enduring Power of Attorney

An Enduring Power of Attorney is a legal document that allows an individual to appoint someone they trust to manage their financial and legal affairs if they become unable to do so themselves in the future. This arrangement ensures that the individual’s affairs are handled responsibly and in accordance with their wishes, providing peace of mind and security. Enduring Powers of Attorney cannot give someone the authority to consent to medical treatment on a person’s behalf. Where the person cannot consent themselves, the consent can be given by the family or by reference to an Advance Healthcare Directive.

Advance Healthcare Directives

Advance Healthcare Directives enable individuals to specify their preferences regarding medical treatments and interventions in advance. This ensures that their healthcare decisions are respected, even if they become incapacitated and unable to communicate their wishes at the time. These directives provide clarity and guidance to healthcare providers and loved ones, reducing uncertainty during critical moments.

Key Benefits of the Assisted Decision-Making Approach

Autonomy and Dignity – Individuals retain greater control over their lives and decisions, fostering a sense of independence and respect.

Flexibility – Support mechanisms can be tailored to the unique needs and circumstances of each person, offering more personalised assistance.

Reduced Court Intervention – By promoting support networks and personal assistants, the need for court-appointed decision makers is minimised, streamlining the decision-making process.

How Patrick J Farrell Solicitors Can Help

Navigating the complexities of the Assisted Decision-Making Act requires expert legal guidance to ensure that your rights or those of your loved ones are fully protected. Our experienced team is here to assist you with:

Setting Up Support Structures – We can help you to establish decision-making arrangements that align with your needs, or the needs of a loved one.

Drafting Advance Healthcare Directives – Our solicitors can guide you in creating comprehensive advance directives to clearly outline your preferences for future decision-making.

Establishing Agreements and Orders – Whether you need a Decision-Making Assistance Agreement, Co-Decision-Making Agreement, Decision-Making Representative Order, or an Enduring Power of Attorney, we provide tailored solutions to meet your specific requirements.

Legal Representation – If court involvement becomes necessary, we provide robust representation to advocate for your best interests.

Our Thoughts on Assisted Decision Making in Ireland

The Assisted Decision-Making Act marks a significant advancement in empowering individuals to take control of their own lives with the necessary support. By moving away from the traditional “ward of court” system, the Act promotes autonomy, dignity, and personalised support. At Patrick J Farrell Solicitors, we are dedicated to helping you navigate these changes and ensure that your rights are upheld.

For more information or to discuss how the Assisted Decision-Making Act may affect you or your family, please contact us at niall.farrell@pjf.ie.