Memo re Assisted Decision Making (Capacity) Act 2015

 

 

The purpose of this Act is to reform the law and to make a modern statutory framework that supports decision making by adults, and enables them to retain the greatest amount of autonomy possible, in situations where they lack capacity.  The Act moves Ireland from a status based approach to capacity to a functional approach. The Act replaces the Wards of Courts system for adults with a modern statutory framework which enables formal agreements to be made by people who consider that their capacity is in question, or may shortly be in question, and to appoint a trusted person to act as their decision making assistant to assist them in making decisions, or as a co-decision maker, who will make decisions jointly with them. The Act places importance on the “will and preferences” of the individual. The guiding principle is that it shall be presumed that a person whose capacity is in question has capacity unless the contrary is shown.

 

The Act also provides for the making of applications to Court in respect of people whose capacity may be in question, to seek a declaration as to whether they may lack capacity, and for the making of consequent orders approving co-decision making agreements or appointing decision making representatives.

 

The Act also modernises the law relating to Enduring Powers of Attorney. 

 

The Act provides for the establishment of a Director of Support Service in the Mental Health Commission who will supervise decision making assistants, co-decision makers, decision making representatives, and people holding Enduring Powers of Attorney.

 

Section 3 of the Act provides that capacity must be assessed on the basis of a person’s cognitive ability to understand the nature and consequences of a decision in the context of available choices at the time of the decision.  This allows for fluctuations in capacity. 

 

Section 3 (2) provides that a person lacks capacity to make a decision if he or she is unable to understand, retain or weigh information relevant to a decision, or is unable to communicate his or her decision either directly or through a third party.  The use of communication tools such as sign language and visual aids does not imply that the person is unable to understand the information. 

 

Section 3 (4) provides that a person is regarded as having capacity to make a decision even if he or she is able to retain the information relevant to the decision for a short time only. 

 

Section 4 confers exclusive jurisdiction on the Circuit Court to deal with applications under the Act dealing with determination of capacity, the approval of co-decision making agreements and the appointment of decision making representatives for persons lacking capacity.  Certain matters regarding Enduring Powers of Attorney, Wards of Court and detention remain within jurisdiction of the High Court, which also has jurisdiction relating to non-therapeutic sterilisation, withdrawal of artificial life sustaining treatment and organ donation.

 

Section 8 give guiding principles and provides that capacity is always presumed unless the contrary can be shown in accordance with the provisions of the Act.  It requires that people shall not be treated as unable to make their own decisions unless all practical steps to help them make a decision have been taken without success.  A person shall not be considered as unable to make a decision merely by reason of making, having made, or being likely to make, an unwise decision.  No intervention shall be made unless it is necessary to do so having regard to the individual circumstances of the person.  The least restrictive option with regard to the person’s rights and freedom of action must be taken. 

 

Section 8 (7) sets out the duties of the intervener on behalf of the vulnerable person when making an intervention.  The intervener must permit, encourage and facilitate the vulnerable person to participate as fully as possible, when making the intervention, and must give effect to the past and present will and preferences of the vulnerable person if practicable to do so.  The intervener must also take into account, as far as reasonably ascertainable, the beliefs and values of the vulnerable person and consider the views of anyone named by them, or any decision making assistant, co-decision maker, decision making representative or attorney for the vulnerable person. The intervener may also take into account the views of others charged with the care of the vulnerable person and consideration must be given to the likelihood that the person may recover capacity and to the urgency of making the intervention prior to such recovery. 

 

Section 10 allows a person who considers that his or her capacity is in question, or may shortly be in question, to appoint another person to assist him or her in making decisions on his or her personal welfare and/or property and affairs.  Decision making assistants can be replaced if they die or become disqualified.  A decision making assistant agreement can be invalidated in certain circumstances and can be varied or revoked.

 

Section 11 sets out the functions on scope of authority of decision making assistants.  Decision making authority remains with the appointer who will be actively assisted, typically by family members, relatives and carers in accessing information, in understanding the information, in making and expressing decisions on matters specified in the agreement, and in implementing decisions made.  The assistant must ascertain the will and preferences of the appointer and endeavour to ensure that the appointer’s decisions are implemented. 

 

The Act provides that the Minister for Justice and Equality shall make regulations as respects decision making assistant agreements including prescribing the form of decision making assistant agreements, the procedures and requirements relating to the execution variation revocation of these agreements, prescribing the information to be included in or annexed to decision making assistants agreements and various other matters.  These regulations have not yet been made.

 

Section 13 of the Act provides for the disqualification of decision making assistants. 

 

Section 15 provides for the making of complaints in relation to decision making assistants to the “Director of the Decision Support Service” appointed by the Mental Health Commission. 

 

Section 17 provides for the appointment of a suitable person to jointly make with the person one or more than one decision on the individual’s personal welfare or property and affairs or both. A suitable person to act as co-decision maker would be a relative, a friend of the appointer who has had such personal contact with the appointer over such period of time that a relationship of trust exists between them and he or she is able to perform his or her functions under the co-decision making agreement.

 

Section 19 outlines the guidelines for the performance of functions of the co-decision maker. It states that a co-decision maker shall advise the appointer by explaining relevant information and considerations relating to a relevant decision, ascertain the will and preferences of the appointer, assist the appointer to obtain the appointer’s relevant information, discuss with the appointer the known alternatives and likely outcomes of a decision, make a relevant decision jointly with the appointer and make reasonable efforts to ensure that a relevant decision is implemented as far as practicable.

 

Section 21 provides for the registration of co-decision making agreements. A co-decision making agreement shall not enter into force until it has been registered. At the same time as registering an agreement, notice of the application and a copy of the co-decision making agreement should be given to the spouse/civil partner/ cohabitant/ child over 18 of the appointer, any decision making assistant/representative of the appointer, any attorney of the appointer, any designated health care representative for the appointer and any co-decision maker of the appointer under another co-decision making agreement. Any of these persons may, not later than 5 weeks from the date on which notice is given, notify the Director that he or she objects to the proposed registration.

 

Section 28 and section 29 provide for the variation and revocation of co- decision making agreements.

 

Section 37 empowers the Circuit Court to make one of both of the following Declarations:-

 

  • A Declaration that the person lacks capacity to make certain decisions relating to his or her personal welfare or property and affairs, or both, unless the assistance of a suitable person as a co-decision maker is made available to him or her.Where a Court makes such a Declaration it shall, unless it is clear to the Court at that time that the relevant person does not intend to enter into a co decision making agreement, allow the relevant person such period of time as the Court considers necessary to register a co-decision making agreement.

 

  • A Declaration that a person lacks capacity to make decisions relating to his or her personal welfare or property and affairs, or both, even if the assistance of a suitable person as a co--decision maker were made available to him or her.Where a Court makes this Declaration, the Court itself may make the decision concerned on behalf of the vulnerable person, or may make an order appointing a suitable person to be a decision making representative for the vulnerable for the purposes of making certain decisions.

 

In making a decision making order, or an order appointing a decision making representative, the Court shall have regard to the terms of any Enduring Power of Attorney made by the vulnerable person and shall ensure that the terms of the order are not inconsistent with the terms of the Enduring Power of Attorney.

 

A decision making representative shall be entitled to be reimbursed out of the assets of the vulnerable in respect of his or her fair and reasonable expenses which are reasonably incurred in performing his or her functions as such.

 

Section 45 of the Act provides for a register of decision making representatives. 

 

Section 46 provides that a decision making representative must, within twelve months of being appointed, and every twelve months thereafter, prepare and submit to the Director a report in writing as to the performance of his or her functions as decision making representative.

 

Section 47 provides that complaints may be made concerning decision making representative to the Director.

 

Section 50 provides for the procurement of expert reports to assist the Court. These include medical reports, reports relating to the circumstances of the person and reports from healthcare professionals.

 

Section 52 provides that legal advice and legal aid may be available in respect of certain applications to the Court under the Act.

 

Part 6 of the Act empowers the Court to review the capacity of people who were Wards of Court under the legislation repealed by the Act, and make certain orders, including, for example, a Declaration that the Ward does not actually lack capacity, or that the person can be discharged from wardship on the registration of a co decision making agreement.

 

Part 7 of the Act replaces the provision of the Powers of Attorney Act 1996 in relation to an Enduring Power of Attorney. It provides for and regulates the creation and registration of Enduring Powers of Attorney after this Act comes into operation, and provides that from that date no Enduring Powers of Attorney can be created under the 1996 Act.  However, Enduring Powers of Attorney created under the 1996 Act remain valid notwithstanding the provisions of this Act.  Section 76 makes a new provision enabling complaints to be made through the Director concerning Attorneys under Enduring Powers of Attorney appointed under the 1996 Act, and in relation to fraud, cohesion or undue pressure used to induce a person to appoint an Attorney under an Enduring Power of Attorney.

 

Part 8 of the Act refers to “advance healthcare directives”.  An advance healthcare directive means an advance expression made by a person, in accordance with Section 84 of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she suffers with lack of capacity.  The Act provides that the purpose of this part of the Act is to enable persons to be treated according to their will and preferences and to provide healthcare professionals with information about persons in relation to their treatment choices.  It provides that a person who has attained the age of eighteen years and who has capacity is entitled to refuse treatment for any reason (including a reason based on his or her religious beliefs) notwithstanding that the refusal (a) appears to be an unwise decision, (b) appears not to be based on sound medical principles or (c) may result in his or her death.

 

Section 84 provides that a person who has attained the age of eighteen years and who has capacity may make an advance healthcare directive.  The Act makes provision for the contents of an advance healthcare directive which can include the appointment of a designated healthcare representative who has power to ensure that the terms of the advance healthcare directive are complied with.  The designated healthcare representative may be given power to advise and interpret what the directive makers will and preferences are regarding treatment as determined by the representative by reference to the relevant advance healthcare directive, and the power to consent to or refuse treatment, up to and including life sustaining treatment, based on the known will and preference of the directive maker as determined by the representative by reference to the relevant advance healthcare directive.

 

Section 94 provides that the Mental Health Commission shall appoint a person to be known as the directive of the decision supports service to perform the functions conferred on him or her by the Act.  These functions include the promotion of public awareness of the Act; the provision of information to two people in relation to their options under the Act but exercising their capacity; the provision of information to decision making assistants, co decision makers, decision making representatives, designated healthcare representatives and attorneys under Enduring Powers of Attorney; to supervise compliance by decision making assistants,  co decision makers, decision making representatives and attorneys and the performance and their functions under the Act and various other functions.

 

Part 10 of the Act refers to the detention of people in approved centres under the Mental Treatment Act 2001 where a person is detained under an order made under the old Wards of Court legislation.

© 2018 Gallagher Shatter solicitors.

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