The Assisted Decision Making (Capacity) Act (ADMA) came into force in April 2023. It took some time for the framework to be put into place and the process and paperwork made available to the public.
The ADMA allows for the support of people who have issues surrounding decision making. For those who have capacity/ decision making issues, the ADMA allows for three main processes: –
- Decision Making Assistance Agreements
- Co-Decision Making Agreements
- Decision Making Representation Orders
All three options are overseen by the Decision Support Services (DSS). The DSS have an extremely user friendly website https://www.decisionsupportservice.ie which provides useful information, guidance and templates.
Decision Making Assistance Agreements and Co-Decision Making Agreements are mechanisms for those who have limited capacity or ability to make decisions.
A Decision-Making Assistant can be appointed to help you through the process of decisions relating to specific areas. The decisions in your Agreement can be about your personal welfare, property and money matters. The Agreement can be for a set period of time, or for set decisions only, or ongoing. A Decision Making Assistant does not make your decision for you, rather they assist you in gathering together information, weighing up the options available to you and, if required, notifying others of the decision you have made.
A Decision Making Assistance Agreement must be notified to the DSS. The DSS will review the Agreement and confirm that it is valid. The parties will then receive a certified copy of the Agreement from the DSS. An Agreement can be varied or discharged at any time.
A Co-Decision Making Agreement allows you to appoint a person to make decisions with you. The decisions in your Agreement can be about your personal welfare, property and money matters. A Co-Decision Maker cannot make decisions without you, the decisions must be made jointly. This type of Agreement is not effective until it is registered with the DSS. A Co-Decision Maker must give annual written reports to the DSS in relation to the Agreement. The DSS can also monitor the Agreement by sending agents to discuss with you and/or your Co-Decision Maker. Any Co-Decision Making Agreement must be notified to your notice parties. Notice parties are: –
- Your spouse, civil partner or your partner
- Any children who are over 18
- Any decision supporters that were appointed under a different support arrangement (for example, a decision-making assistance agreement)
Notice Parties can object to a Co-Decision Making Agreement within 5 weeks of receiving the notification and the DSS will review the objection and make a decision.
A Co-Decision Making Agreement can be varied or discharged at any time. It must be in writing, signed, witnessed by two parties. The relevant Notice Parties and DSS must be notified of the change. You must also have a certificate from your doctor confirming that you have capacity to end the Agreement.
A Decision Making Representative Order (DMRO) is required where you lack full capacity to make decisions and the above two procedures are not suitable. This is a more complicated process and requires an application to Court. If the proposed Decision Making Representative does not fall within the category of those persons who are entitled to apply directly to the Court, for example a spouse, child over 18 or sister/ brother of the Relevant Person, then you will be required to make an Ex-Parte Application for consent to apply for a DMRO.
Once consent is obtained, the Substantial application is then made to Court and must be made on Notice to the Relevant Person and any Notice Parties. The Court must consider the application with due regard to the Relevant Persons known wishes, any conflict that might arise, the Relevant Persons relationship and compatibility with the Applicant and any objections from others. It is the Court’s responsibility is to ensure that the Relevant Person and their assets are maintained responsibly and appropriately. Once the DMRO is granted, the Decision Making Representative can make decisions on behalf of the Relevant Person as if they had stepped into their shoes directly. Decisions which can be made will be those set out in the DMRO application and granted by the Court. It is therefore very important that all anticipated decisions required are set out in detail in the application papers. A Decision Making Representative is under the supervision of and regularly monitored by the DSS and is required to keep relevant records and report to the DSS.
In relation to all three possible arrangements outlined above, it is important to note that there are some persons who cannot be appointed. For example, if a person has been convicted of an offence against the relevant person and/or their child; are financially insolvent or have been convicted of an offence involving fraud or dishonesty (unless the agreement is about personal welfare decisions); or are the owner or a registered provider of a designated care or mental health facility where the relevant person lives or the employee of such a person (unless they are a close relative).
If you have a query in relation to the Decision Making Assistance Act or any other litigation matter, please contact Donna Phelan of Dillon Solicitors LLP at 01 2960666 or by email at info@dillon.ie.
