Assisted Decision Making Capacity Act

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Assisted Decision Making Capacity Act

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The ‘new’, Assisted Decision Making (Capacity) Act 2015 was fully commenced in April 2023. It establishes a modern legal framework to support decision-making by adults who may otherwise have difficulty in making decisions and replaces the outdated wardship system.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.

Residents in hospital care or nursing homes are some of the most vulnerable in society. Those in residential care range from young adults with mild learning disabilities who need support to live semi-independently all the way to those with the most severe learning and physical disabilities who require 24 hour care. Residents in nursing homes are often elderly with significant health needs or cognitive impairments. The nature of a resident’s age and/or disability often means that they are extremely vulnerable to physical/psychological abuse or neglect.
They are often unable to speak up for themselves or unable to realise (because of their cognitive impairments or learning disabilities) when they are victims of abuse. They may feel unable to report incidents of abuse for fear of reprisals from their abuser. They may be living in a placement where the abuse of residents is seen as normal day-to-day activity and residents assume that it is just something that they have to deal with on their own.

We can offer advice and guidance an all aspects of Capacity Law, including:

  • We represent Decision-Making Representatives in proceedings in both the Circuit Court and the High Court.
  • We can act as your Decision-Making Representative
  • We Advise and draft Co-Decision Making agreements and Decision-Making Assistant agreements

We can also help you plan ahead for the future, including:

  • Advance Healthcare Directive: 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.
  • Enduring Power of Attorney: 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.

Stephen Walsh & Co Solicitors can
assist you to plan ahead

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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 Stephen by email stephen@swco.ie or by phone 045881193  if you would like assistance, advice or representation in relation to any issues regarding the Assisted Decision Making Capacity Act.