The Assisted Decision-Making (Capacity) Act, 2015

The Assisted Decision Making (Capacity) Act, 2015 (Act) was signed into law on 30 December 2015 and it is the intention of the Minister for Justice and Equality that the new decision-making support options will implemented during 2017. At present, only a limited number of the provisions of the Act have commenced, none of which are substantial parts. The Act will repeal the outdated Lunacy Regulations (Ireland) Act 1871 and provides a progressive new framework of decision-making to assist vulnerable people with limited capacity.
 
Under the Act, an individual is presumed to have decision-making capacity unless the contrary is shown. The Act provides for a new method for assessing capacity, providing in section 3 that ‘a person’s capacity shall be assessed on the basis of his or her ability to understand the nature and consequences of a decision to be made by him or her in the context of the available choices at the time the decision is made’.
 
The Act also provides for a tiered legal framework providing for the appointment of a ‘decision – making assistant’, a ‘co-decision-maker’ or a ‘decision- making representative’. Part 3 of the Act provides for assisted decision making and provides that a person whose capacity is in question and is over eighteen years of age can appoint another person to assist him/her in making decisions regarding his/her personal welfare or property. Part 4 of the Act provides for co-decision making, enabling the co-decision maker to jointly make decisions with the appointer in relation to the appointer’s personal welfare or property and affairs. This person must be a relative or friend with whom the appointer has a relationship of trust. The Circuit Court may also appoint a decision-making representative who will have whatever powers that that Court directs.
 
The Act will abolish the ward of court system. Once the Act commences, each ward of court over the age of eighteen will be reviewed by the High Court or the Circuit Court and if they are deemed to have capacity, they will be discharged from wardship. If he or she is deemed to be lacking capacity, they will be discharged but will come under the purview of the new regime, either appointing a co-decision maker or having a decision making representative appointed by the court.
 
The Act establishes a Decision Support Service with clearly defined functions which will include the promotion of public awareness relating to the exercise of capacity by persons who may require assistance in exercising capacity.