The Assisted Decision-Making (Capacity) Act 2015: A Practical Guide

Introduction

The Assisted Decision-Making (Capacity) Act 2015, as amended by the 2022 Act (the “Act”), is the law in Ireland that supports adults who may need help making decisions.

The Act fully replaced the old “Wards of Court” system when it came into effect on 26 April 2023. The Act takes a modern, human-rights-based approach and ensures that people keep as much control over their own lives as possible.

Principles of the Assisted Decision-Making (Capacity) Act 2015

The core guiding principles of the Assisted Decision-Making (Capacity) Act 2015 are as follows:

• Presumption of Capacity: Every adult is assumed to have capacity unless it is shown otherwise

• Support Before Intervention: Help must be given to the person to make their own decision before assuming they cannot

• Respect for the Person’s “Will and Preferences”: Any support or decisions must reflect what the person wants, not what others think is “best”

• Least Restrictive Approach: Any intervention should affect the person’s rights as little as possible

• Unwise Decisions are Allowed: Making a decision others disagree with does not mean a person lacks capacity

How Capacity Is Assessed – The Functional Test

Capacity is decision-specific and time-specific. A person may need help with some decisions but not others.

 A person has capacity to make a decision if they can:

• Understand the relevant information 

• Retain it long enough to decide 

• Use or weigh the information to choose between options 

• Communicate their decision in any way

This focuses on how the person makes the decision, not whether others agree with the outcome.

Types of Legal Support Available

• Decision-Making Assistance Agreement: For people who can make their own decisions but need help gathering information, understanding it, or communicating. The person still makes the final decision themselves.

• Co-Decision-Making Agreement: For people who need more structured support. They appoint someone they trust to make decisions together with them. This must be registered with the Decision Support Service (“DSS”).

• Decision-Making Representation Order: If a person is unable to make certain decisions even with help, the Circuit Court can appoint a Decision-Making Representative to make those specific decisions. This is the most formal option.

Planning Ahead

• Enduring Power of Attorney (“EPA”): Allows you to appoint someone to make decisions about property, finances or personal welfare if you lose capacity.

• Advance Healthcare Directive (“AHD”): Lets you record your healthcare preferences in advance and appoint a Designated Healthcare Representative.

Step-by-Step Guide if Support is Needed

• Identify the Concern: Is the person struggling with decisions about finances, welfare, healthcare or legal matters?

• Provide Practical Support: Use clear language, visual aids, assistive tools and allow more time.

• Decide Whether a Formal Arrangement is Needed: If difficulties persist or decisions are high-risk, consider a legal arrangement.

• Choose the Right Level of Support: Assistance Agreement, Co-Decision-Making Agreement or a Representation Order.

• Register the Arrangement: Most agreements must be registered with the Decision Support Service.

• Court Application: If necessary, make a Court Application where Representation Orders require a Circuit Court application.

• Review Regularly: Capacity may change over time and the agreement may need regular review.

What the Act Does Not Allow

Assisted Decision-Making arrangements cannot be used for: 

• Making a will 

• Marriage or civil partnership 

• Adoption 

• Sexual relationships 

• Jury service

Conclusion

In summary, the Assisted Decision-Making (Capacity) Act 2015 protects vulnerable adults while supporting autonomy and dignity. It offers structure, safeguards and flexibility, ensuring every person stays at the centre of important decisions affecting their life.

Further Information

For expert legal guidance on the Assisted Decision-Making (Capacity) Act, please contact Partner Avril Scally or Solicitor Grace Molloy in our award-winning Medical Negligence & Personal Injury Team.