November 21, 2023
Debt and Asset Recovery Legal Secretary
We are looking for an experienced Legal Secretary to join our busy and friendly Debt and Asset Recovery Team, based in Dublin 2. Responsibilities will include but are not limited...
The Assisted Decision-Making (Capacity) Act of 2015 (the “2015 Act”) as amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022 is due to commence in its entirety on the 26th of April 2023 following a recent statement by the Minister for Children, Equality, Disability, Integration and Youth and Minister for State for Disability.
The much-anticipated Act brings about sizeable change to the decision-making autonomy of all individuals, but it will have relevance for persons with disabilities, older persons or persons with diminished capacity due to injury.
The 2015 Act (as amended) introduces a modern framework of supported decision making to support individuals to make their own decisions and choices, with dignity, respect and the wills and preferences of the Decision-Maker being the centre of the process.
The presumption of capacity is the core principle of the 2015 Act – a person is presumed to have capacity until it is proven otherwise. In a situation where a person’s capacity is called into question, their capacity will be assessed based on their ability to make a specific decision at a specific time. This is known as the ‘functional assessment of capacity’ which weighs up the person’s ability to:
If an individual is deemed to lack capacity to make a specific decision, a hierarchy of decision-making supports are introduced in the 2015 Act to support the individual to make decisions reflective of his or her own wills and preferences.
If the decision-maker is deemed to lack capacity in the context of a healthcare decision, the Advanced Healthcare Directive will take precedence:
Outside of the context of healthcare, the Enduring Power of Attorney will take precedence:
If the individual has not put in place an Advanced Healthcare Directive or an Enduring Power of Attorney, an array of Circuit Court-appointed Decision Supporters can be appointed under the 2015 Act. Decision Supporters come in the form of Decision-Making Assistants, Co-Decision-Makers or Decision-Making Representatives:
A person can apply to the court to become a Decision-Making Representative if they can show a true interest in the welfare of the person. An application is then made to the Circuit Court who will decide if they are suitable or not. If the court agrees, the Decision Support Services will be informed and a Decision-Making Representation order will be made.
If none of the abovementioned supports are in place, the Decision-Support Service (“DSS”), as established under the 2015 Act will assist the individual in appointing a Decision-Making Supporter at whatever level is appropriate in-line with the individual’s needs, and capacity.
The role of the DSS is multi-faceted and includes, among other things, supervising supported decision-making, the introduction of a panel of experts to act as decision-making representatives and investigating complaints under the 2015 Act. Individuals will soon be able to apply online on the DSS website and register supported decision-making arrangements.
The Courts Service have been working with the DSS, the Heath Service Executive and Non-Governmental Organisations to ensure the effective implementation of the 2015 Act, (as amended). New systems and processes have been introduced including a new ICT system and staff training as well as new Court rules to set out the procedure for applications involving Decision-Making supports.
The 2015 Act (as amended) brings about welcome change to how capacity is approached in the Irish Legal system as it moves moving towards a system more consistent with Ireland’s international human rights obligations whereby individuals are supported to make decisions for themselves based on their own wills and preferences.
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