Assisted Decision Making (Capacity) Act 2015

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President Michael D. Higgins has signed the Assisted Decision Making (Capacity) Act, however the commencement order has not been signed by the Minister for Justice and will not be done before the next government is formed.

The Act reforms the law in relation to persons who require or may require assistance in exercising their decision-making capacity having regard to the protections afforded by the European Convention for the Protection of Human Rights and Fundamental Freedoms.  It provides for the appointment of other persons to assist them in decision-making or to make decisions jointly with such persons with diminished decision making capacity and also provides for the making of an application to Circuit Court or High Court in respect of such persons including seeking the appointment by the Circuit Court of decision making representatives for such persons.

The Act provides for the making of advance healthcare directives by persons of diminished capacity concerning medical treatment decisions should the said person subsequently lack the capacity.  It provides for the appointment of advance healthcare directives of designated healthcare representatives.

For the first time the Act defines a person’s capacity to make decisions by reference to their ability to understand information, to retain it, to use or weigh up the information as a process for making decisions.

The Act introduces into law the idea of a co-decision making agreement.  An adult who considers that his or her capacity is in question, or may shortly be in question, may appoint another suitable adult to jointly make decisions affecting his personal welfare or property and affairs, or both. The Act will regulate the nature of the decision making and the performance of the functions of the decision maker.  The decision making agreement shall not come into force until it is registered, with a newly created office – the Director of the Decision Support Service.

The Act also regulates and makes amendments to the law concerning wards of court, and enduring powers of attorney.

David Williams