Assisted Decision Making (Capacity) Act 2015 and Abolishment of Wards of Court
The commencement date for the Assisted Decision Making (Capacity) Act 2015 is the 26th April 2023.
The purpose of the Act is to support a person in making their own decisions and it reforms the law relating to people who require assistance in exercising their decision-making capacity.
It establishes the Decision Support Service and it provides for three support arrangements for people who currently face challenges when making decisions, namely;
- Decision-Making Assistant,
The role of a Decision-Making Assistant is to assist a person in making decisions. They are appointed by the person and same is recorded in a Decision-Making Assistance Agreement.
- Co-Decision-Maker
The role of a Co-decision-maker is to make certain decisions together with the person. They are appointed by the person and same is recorded in a co-decision-making agreement
- Decision-Making Representative.
The role of the Decision-Making Representative. is to make certain decisions on the person’s behalf. The Decision-Making Representative is appointed by the Court and recorded in a in a Decision-Making Representation Order. The Court will list the decisions that the Decision-Making Representative can make.
The Decision Support Service will supervise decision support arrangements and monitor decision supporters. They will also receive and deal with complaints.
It also provides for an Advance Healthcare Directive, or Enduring Power of Attorney to be made by people to provide for the eventuality that they may lose capacity to manage their own affairs. A Designated Healthcare Representative is appointed under the Advance Healthcare Directive and or Attorney are appointed under the Enduring Power of Attorney.
The Designated Healthcare Representative’s role is to make decisions as set out in the person’s Advance Healthcare Directive in respect of healthcare.
An attorney’s role is to make certain decisions on behalf of the person as per the Enduring Power of Attorney document. The Enduring Power of Attorney must be registered with the Decision Support Service
Under the Act, there is always a presumption that a person has capacity. If doubts are raised with regard to a person’s capacity a ‘Functional Test’ of capacity will be applied. A person will be regarded as having capacity if they can;
- Understand the information relevant to the decision
- Remember the information long enough to make a choice
- Use or weigh up the information to make a decision
- Communicate their decision (this may be with assistance)
They Act also sets out guiding principles to be followed, which are;
- Presume every person has the capacity to make decisions about their life
- Support people as much as possible to make their own decisions
- Don’t assume a person lacks capacity just because of an unwise decision
- Only take action where it is really necessary
- Any action should be the least restriction on a person’s rights and freedom
- Give effect to the person’s will and preferences
- Consider the views of other people
- Think about how urgent the action is
- Use information appropriately
Wards of court
Under the Act, the Wards of Court system will be abolished. When the Act commences all current wards must be reviewed within three years and will be discharged from wardship. A decision will then be made by the Court as to whether or not they need a Decision Supporter.
The Ward will have an opportunity to be heard by the Court when their case is being reviewed; and will have access to representation and legal aid.
If the Court declares that the ward lacks capacity, this declaration will be kept under review by the Circuit Court.
Once discharged from wardship, the person may appoint the former committee as a Decision-Making Assistant or Co-Decision-Maker. The former committee may also be appointed by the Court as a Decision-Making Representative.
Any funds held in Court under a wardship will be returned to the former ward.
If a Co-Decision-Making Agreement has been entered into, once it is registered with the Decision Support Service, the funds will be returned to the former ward.
If a Decision-Making Representation Order has been made, once a Decision-Making Representative has been appointed and the arrangement has been registered with the Decision Support Service, the funds will be returned to the former ward. The Order will detail what the Decision-Making Representative is permitted to do with the funds.
If you have any queries about any aspect of the Act, please do not hesitate to contact Lorna McArdle, Solicitor on 01 2960666.
