Assisted Decision Making (Capacity) Act

This new piece of legislation was signed into law in December 2015 and is due to be commenced later this year or early next year.  This Act governs the law in relation to people who have difficulties in relation to decision making whether because of an intellectual disability, an acquired head injury or dementia associated with old age. This Act is a radical change from the existing system as it includes people who would previously have been deemed to lack capacity to make a decision.  It changes the definition of capacity to a functional basis.

A functional basis for capacity takes in to account the changes in a person’s capacity over time.  In future a person’s capacity will be assessed on the basis of their ability to understand the nature and consequences of a decision to be made by them in the context of available choices at the time that a decision was made. In future any decision made under the Act must be made with the intention of maintaining the dignity of the person involved and with the intention to give effect in so far as is possible to the past and present wishes of the individual.

The Act introduces the new concepts of a decision making assistant and a co decision maker.

A Co- Decision Maker is appointed in writing in a manner similar to executing a Will.  A Co-Decision Maker is defined as a relative or friend with whom the person has a relationship of trust built up over a period of time. The role involves obtaining all necessary information required to assist the person in making a decision and discussing alternatives and implications of decisions with the person. The Co- Decision Maker will then make the decision jointly with the person and will make efforts to ensure that the decision is implemented.

The Court may appoint a Decision-Making Representative on behalf of a relevant person.  This occurs where it is felt that a person lacks capacity even with assistance to such an extent that decisions need to be made on their behalf, entirely by a third party. The Act gives the Circuit Court the power to appoint a Decision-Making Representative. If there is no one suitable willing to act, then the Court will ask the Director of the Decision Support Service to nominate two people from a panel for consideration by the Court. The Court will then appoint one of these people to act. The Decision-Making Representative is obliged as far as possible to ascertain the wishes of the person. The functions of the Decision Maker are as limited in nature and extent as possible.

Another effect of the new legislation will be that the Wards of Court system will be eliminated. The Act provides for a review of all existing Wards of Court with the intention of discharging the Wards from Wardship and providing assistance to those Wards remaining in the system to transfer to the new system. A new type of Enduring Power of Attorney will be introduced which will be different to the existing types of Enduring Power of Attorneys. 

The Act also introduces the concept of Advanced Health Care Directives which will allow people to express advanced preferences in relation to future treatment including life sustaining medical treatment and will enable people to appoint a designated health care representative. In the future, a person over the age of eighteen and who has capacity may refuse medical treatment for any reason including a reason based on religious beliefs even though the decision may seem unwise to an outsider and may even result in the death of the individual.

In general, the Act contains a number of safe guards and is focused on the right of people to make their own decisions into the future. It provides a statutory framework for people to make legally binding agreements for the future in relation to their personal affairs including healthcare choices and decisions relating to their property.


If you require further information or advice in this area please contact Marguerite Phillips (This email address is being protected from spambots. You need JavaScript enabled to view it.) or telephone us on 065 6840060.


Marguerite Phillips, B.C.L.

This information is intended as a guide only and does not purport to be a legal interpretation. While every care is taken to ensure a quality service, Cashin & Associates does not give any guarantees, undertakings or warranties concerning the accuracy, completeness or up-to-date nature of information provided. Users are responsible for confirming information from the full text from published sources. 

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