Assisted Decision–Making (Capacity) Act, 2015
The Assisted Decision-Making (Capacity) Act, 2015 dramatically alters the law in relation to people who have an intellectual disability or illness that makes it difficult for them to make decisions themselves.
In the past, there were very limited solutions that took no account of a person’s individual capacity and therefore not very proportional. If somebody was unable to manage their affairs and it was necessary to deal with their property or assets, the only solution was to have their affairs administered by the Court by being made a Ward of Court. Being a Ward of Court involved the Court supervising all of their affairs and decisions and this was very often far too great an intrusion into their lives.
The new Act provides for the intervention of the Courts only in respect of the particular decisions that need to be made and involves far less intrusive interference. It also provides for co-decision making agreements where somebody can formally appoint somebody else to help them make certain decisions.
The cases of all current Wards of Court will be reviewed so that the new system can apply.
The Act continues to provide for Enduring Powers of Attorney which we recommend to our clients and which can provide an alternative to Wardship. This is a process whereby a person when they are well, appoints someone to act on their behalf in the future should they become unable to look after their affairs. The Power of Attorney cannot be used until it is registered with the Court and a Doctor has certified that they are no longer able to look after their own affairs. The new law requires people acting under an Enduring Power of Attorney to submit Reports to a new Government Officer called the Director of the Decisions Support Service which is the new body that will supervise decision making on behalf of people who are not able to make decisions for themselves.
The Act also allows for advanced healthcare directives whereby an adult can prepare a document when they are well, directing that they are not to be given particular medical treatments in the future if they become unwell.
This piece of legislation has been under discussion for many years and makes significant changes in how those with intellectual disabilities are dealt with. The current law dates from the mid nineteenth century and was completely unsuited to modern times given current attitudes to ensuring that everyone is treated with dignity and respect as part of their human rights.
