Assisted Decision Making Act

The ‘new’, 2015 Assisted Decision Making (Capacity) Act was fully commenced in April 2023. It establishes a modern legal framework to support decision-making by adults who may have difficulty making decisions without help and replaced the previous wardship system. People are now presumed to have capacity to make decisions, unless determined otherwise.

People who experience difficulties making certain decisions can now turn to the Decision Support Service, a new body set up under the Act to provide support in decision making.

Our solicitors can help you navigate the provisions of the new Act:

• we can act as your decision making representative.
• we represent decision making representatives in proceedings in the High Court.

We can also help you put in place arrangements for the future, including:

• an advance healthcare directive, setting out your wishes about healthcare and medical treatment decisions where you may be unable to make these decisions at some time in the future, appointing someone you know and trust as your designated healthcare representative to ensure your advance healthcare directive is followed.
• If you do not currently need support, but would like to plan ahead, you can make an enduring power of attorney. This arrangement lets you appoint someone you trust as your attorney; their role is to act on your behalf to make certain decisions if you are unable to in the future.

The Act provides:

• that a person’s right of autonomy and self-determination be respected;
• the presumption that each person has the capacity to make decisions about their life;
• any assistance should be in first instance to give effect to the person’s wishes, values and beliefs;
• all current Wards of Court must be reviewed by the High Court (Wardship Court) and must leave wardship within 3 years.

It sets out a human rights compliant legal framework for decision making where a person lacks capacity and for advance healthcare directives. If you are unable to make certain decisions on your own, you can appoint a person you trust as your co-decision-maker, under a co-decision-making agreement. This gives that person the legal authority to decisions jointly with you, about your personal welfare, your property, or money matters. Where a person is unable to make certain decisions even with someone else’s support, the court may appoint a decision-making representative to make certain decisions on their behalf, taking into account their wishes, values and beliefs. It may be a family member, friend or colleague, or the Court can appoint an expert.

Since the Act has come into force, some cases have been heard before the High Court. It has found that:

• the express wishes of the person which they had clearly and consistently expressed, must be given considerable weight, notwithstanding their current lack of capacity. The views of their family are also important, and considerable weight should be attached to those views.
• a person lacking capacity who potentially has a mental disorder, should be treated in the same way as any other person who may require detention under the Mental Health Act, whether they are already a Ward of Court or not.
• an advanced healthcare directive, written by an individual who wished to refuse treatment, was valid, and that the person had capacity to make that decision. The authority in whose care they were, was entitled to give effect to the directive, and not provide the treatment.

Please contact Muriel by emailing muriel@mulligansolicitors.ie or by phone 01 6373946 if you would like assistance, advice or representation in relation to any issues regarding the Assisted Decision Making Capacity Act.