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Capacity & Assisted Decision Making in Ireland

For many reasons, adult persons may, at any time, encounter difficulty in making decisions on their own welfare, property and affairs, or may be unable entirely to make such decisions. Previously, where a person in that position had not prepared an Enduring Power of Attorney prior to losing capacity (if there had ever been such a point), the only avenue of assistance was the Wardship process. 2015, however, saw the Assisted Decision-Making (Capacity) Act 2015 enacted which seeks to provide new arrangements for a range of capacity related situations, avoiding the necessity of invoking the High Court where possible.

Wardship

When a person is unable to manage their affairs because of mental incapacity, an application can be made to the courts for them to become a Ward of Court. The court must make a decision as to whether they can manage their own affairs for their own benefit.

If it is decided that the person cannot manage their own property because of mental incapacity, a Committee is appointed to control the assets on the Ward’s behalf. The Committee means the person(s) into whose care the Ward is committed.

Once a person is made a Ward, certain decisions such as to medical treatment or leaving the jurisdiction require the consent of the High Court. In addition, a Ward’s financial means (money in accounts) can be paid into court so that they are not depleted.

A request for Wardship may be made to the Circuit Court where the property of the person does not exceed €6,350.00 or the income from that property €380.00 per annum. Otherwise, the application is made to the High Court.

The Committee acts under the directions of the Court either personally or through his solicitor. The Court may also require the Committee to follow directions of the Registrar. Typically, a Committee may be permitted by the Court to carry out such functions as collecting a Ward’s social welfare.

In addition, the Committee will be responsible for keeping the Wards of Court Office informed of any matters which require Court approval e.g. change of residence, consent to medical procedure, ensuring that the Ward’s clothing and other personal needs are met, and applying for benefits or payments on behalf of the Ward. The Committee is required to account to the Office for all funds received and payments made by him or her in relation to the Ward.

On the death or resignation of a Committee, a new Committee is appointed by the Court in the best interests of the Ward.
The Wardship process has certain costs and formalities attached, however it offers the security of knowing that the Ward’s money cannot be used by other persons for their own benefit, and the courts have an oversight role to ensure that the Ward’s best interests and welfare are being protected, and that they are not exposed to harm or neglect.

Assisted Decision-Making (Capacity) Act 2015

This 2015 Act has not yet been fully brought into effect, and we are still awaiting a date when the arrangements under the Act will be available for use. The Act will eventually see the end of the Wardships procedure and no new Wardships will be ordered once the Act is commenced.

When it is fully implemented, the Act will provide a new framework for individuals who cannot make decisions unaided to make legally-binding agreements to be assisted and supported in making decisions about their welfare and their property and affairs, by the appointment of a person to assist them or make decisions for them. Certain persons are disqualified from acting in that role.

The Act sets out guiding principles that are intended to safeguard the autonomy and dignity of the person with impaired capacity. There is a presumption that the person has decision-making capacity unless the contrary is shown. Any act done or decision made must be done in a way that minimises restrictions on the person’s rights and freedoms of action and gives effect, as much as possible, to their past and present will and preference.

It will be an offence to use fraud, coercion or undue influence to force another person to make, vary or revoke any arrangement under the Act. It is also an offence to make a false statement when registering certain agreements or documents. Anyone appointed under one of the arrangements provided for in the Act will be guilty of an offence where they ill-treat or wilfully neglect the person.

The Act provides for three types of decision-making supports, namely:

  1. Assisted Decision-Making
  2. Co-Decision-Making
  3. Decisions by the court or Decision-Making Representative appointed by the court

Assisted Decision-Making

Where a person considers that their capacity is in question or may come into question, that person may appoint a ‘Decision-Making Assistant’ (for example, a family member or carer) to assist them to access information or to understand, make or express decisions about their welfare, property and affairs.

The Decision-Making Assistant will not make the decision on behalf of the person. Any decision will be taken as having been made by the person only. The Assistant should make every effort to ensure the relevant decisions are implemented accordingly.

The appointment of such a Decision-Making Assistant is done by way of a formal Decision-Making Assistance Agreement, which may be revoked at any time. There will be an avenue for persons concerned about the role of an Agreement or Assistant to make complaints in order to ensure that the person’s welfare is not being abused.

Co-Decision-Making

Where a person considers that their capacity is or may shortly come into question, they may appoint another person to jointly make with them a decision or decisions about their welfare, property and affairs.

A suitable Co-Decision-Maker is defined in the Act as a relative or friend with whom the person has a relationship of trust built up over a period of personal contact and that the Co-Decision-Maker is able to perform the duties of the role.

The appointment of a Co-Decision-Maker is done in writing in a Co-Decision-Making Agreement, which must be registered to be effective, and which is revocable. Notice of intent to register must be given to certain persons, and there will be automatic reviews of the Agreements at set intervals. The Co-Decision-Maker must file a report every year.

The role of a Co-Decision-Maker is to assist the person to obtain all necessary information regarding the decision or decisions, to explain the nature of any decision(s), discuss any alternatives and likely outcomes, and establish the will and preferences of the person as much as possible. The Co-Decision-Maker will make relevant decision(s) jointly with the person.

A Co-Decision-Maker is entitled to have their expenses reimbursed from the assets of the person where any fair and reasonable costs associated with performing the role are properly vouched.

Decision-Making Representative

The Act provides for intervention by the courts where a person lacks capacity to such an extent that they require decisions to be made on their behalf entirely by someone else. The person can be assisted in the court proceedings to assess their capacity by a Court Friend.

Where it is decided that a person cannot make decisions even with one of the above arrangements in place, the court can appoint a Decision-Making Representative to make decisions for them entirely, who must be suitable and willing to act.

Unless otherwise ordered by the court, a Decision-Making Representative will be entitled to reimbursement of reasonable expenses out of the person’s assets. Where the Decision-Making Representative appointed is acting within their trade or profession, the court may allow for them to be paid from those assets.

The Act specifically prohibits Decision-Making from certain actions:

  • Preventing a particular person from having contact with the person
  • Making any decision on behalf of the person not specified in the order
  • Settling any part of the property of the person without the court’s approval
  • Doing any act which is intended to physically restrain the person unless there are exceptional emergency circumstances

Decision-Making Representatives will have to file a report on the performance of their duties within 12 months of appointment, and annually thereafter. The report must include details of costs, expenses and pay claimed. Any interested person may make a complaint regarding a Decision-Making Representative.

For further information on any of the above or to make an appointment, please call us on 01 832 7899 or email info(at)barronmorris.com.

The material contained on this website is for general information purposes only and does not constitute legal or other professional advice. Any and all information is subject to change without notice. No liability whatsoever is accepted by Barron Morris for any action or omission made in reliance on the information on this site. If you require specific advice on any legal matter then please contact a solicitor.


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