Capacity Law in Ireland — Help for Decision-Making Representatives

A practical guide from Patrick J Farrell and Company on the Assisted Decision-Making (Capacity) Act 2015, the role of a Decision-Making Representative, and how we can assist.

A new framework for decision-making in Ireland

The Assisted Decision-Making (Capacity) Act 2015 (the “Act”) came into operation on 26 April 2023. It replaced the Ward of Court system established under the Lunacy Regulation (Ireland) Act 1871 with a modern, rights-based framework for supporting adults whose capacity to make particular decisions is, or may become, in question. The Act is overseen by the Decision Support Service (the “DSS”), which is part of the Mental Health Commission.

The Act creates three forms of decision-support arrangement for adults whose decision-making capacity is in question:

• a Decision-Making Assistant, who supports a person who has capacity to make their own decisions but needs help to do so;
• a Co-Decision-Maker, who makes decisions jointly with the person; and
• a Decision-Making Representative (a “DMR”), who is appointed by the Circuit Court to make particular decisions on behalf of a person who has been assessed as lacking capacity to make those decisions, even with support.

Adults who were wards of court at the date of commencement have been transitioning out of wardship into arrangements under the new regime, with the Circuit Court making fresh orders (including the appointment of DMRs) where required.

The Guiding Principles

Section 8 of the Act sets out the guiding principles which must be observed by anyone exercising a function under the Act, including a DMR. The DSS also publishes guidance on the application of those principles. In summary, the principles are:

• there is a presumption that every adult has capacity;
• a person is not to be regarded as lacking capacity unless all practicable steps have been taken, without success, to help them make the decision themselves;
• a person is not to be regarded as lacking capacity merely because they make, or are likely to make, an unwise decision;
• there must be no intervention unless it is necessary, and any intervention must be the least restrictive of the person’s rights and freedoms that is consistent with achieving the purpose of the intervention;
• the past and present will and preferences of the person, and their beliefs and values, must be given effect to so far as is reasonably ascertainable; and
• the views of family members, carers and others with a bona fide interest in the welfare of the person should be taken into account.

Detailed practice guidance on each of these principles is published on the DSS website at www.decisionsupportservice.ie.

The role of a Decision-Making Representative

A DMR is appointed by the Circuit Court to make specified decisions for a person (referred to in the Act as the “relevant person”) who, even with support, lacks capacity to make those decisions personally. The order of appointment sets out the precise scope of the DMR’s authority. Within that scope, a DMR must:

• consult with the relevant person and seek to ascertain and give effect to their will and preferences;
• act in good faith and within the limits set out in the order;
• keep proper records of the decisions taken and the reasons for them;
• submit reports to the Decision Support Service at the intervals required by the order and the Act; and
• observe the guiding principles in everything they do.

The role is not open-ended. A DMR may only make decisions of the type permitted by the order. If a decision is needed that lies outside that scope, a further application to the court is required.

Types of decision a DMR may need to take

Depending on the terms of the order, a DMR may, for example, be required to:

• arrange and pay for nursing-home, residential or community care;
• manage bank accounts, pensions and social welfare entitlements;
• buy, sell, let, mortgage or repair the relevant person’s property;
• deal with the relevant person’s tax affairs;
• manage insurance, savings and investments;
• bring or defend legal proceedings on the relevant person’s behalf;
• accept or claim a legacy or inheritance to which the relevant person is entitled; and
• make decisions about day-to-day care and welfare matters within the scope of the order.

How We Can help

At Patrick J Farrell and Company, we advise Decision-Making Representatives at every stage of the role. In particular, we can:

• advise on the scope of your authority under the order, and the limits of your decision-making powers;
• guide you through your reporting and other obligations to the Decision Support Service;
• prepare the legal documents required to give effect to the decisions you take;
• bring or defend court proceedings on behalf of the relevant person; and
• where the scope of the order is too narrow for the decisions that now need to be made, prepare and bring an application to the Circuit Court to vary or widen the DMR’s authority.

Cases where legal action may be required

Among the situations in which a DMR may need to instruct solicitors are:

• Property matters — selling, letting or repairing the relevant person’s home or other property; dealing with title issues, mortgages, rights of way and boundaries; protecting or recovering property held in the relevant person’s name.
• Enforcing the rights of the relevant person — pursuing claims for unpaid sums, social welfare or pension entitlements, professional negligence, personal injury, or other debts owed to the relevant person.
• Legacies and inheritances — administering or extracting the estate of a deceased person from which the relevant person stands to benefit, claiming a legal right share, accepting a bequest or pursuing a claim under section 117 of the Succession Act 1965.
• Disputes regarding the relevant person’s affairs or care — disputes within the family, with care providers, or with public authorities about the level or type of care provided to the relevant person.
• Applications to extend or vary the DMR order — where decisions now arise that fall outside the original order, an application is made to the Circuit Court to widen or amend the DMR’s authority.
• Dealing with the review of capacity of a relevant person which takes place generally three years after the appointment of  Decision Making Representative.

Our Experience

Niall Farrell, Partner and Notary Public at Patrick J Farrell and Company, has more than fifteen years’ experience dealing with the affairs of Wards of Court and, since the commencement of the 2015 Act, of relevant persons under the new regime. 

He is on the panel of independent Decision Making Representatives who are appointed when a trust family member is not suitable or available. He has an in-depth knowledge of the role of a Decision Making Representative. 

He is acting as the Solicitor applying for the discharge of many Wards of Court and the appointment of Decision Making Representatives. 

During the period acting for the General Solicitor for Minors and Wards of Court, who at one time was committee for approximately 750 wards of court, he has taken legal proceedings on behalf of wards recovering significant sums misappropriated from them and dealing with complex property-management matters. 

That experience is now brought directly to bear in advising and acting for Decision-Making Representatives.

Contact Us

If you have been appointed as a Decision-Making Representative, or are considering an application for the appointment of one, and you would like to discuss how we can assist, please contact Niall Farrell at Patrick J Farrell and Company.

Patrick J Farrell and Company LLP

Newbridge, Co. Kildare, W12 C663

Telephone: (045) 489000

Email: postroom@pjf.ie