For those who had not planned ahead for the possibility of mental incapacity by making either an Enduring Power of Attorney or an Advance Healthcare Directive when they had the capacity to do so, the Assisted Decision-Making (Capacity) Act 2015 sets out a number decision-making intervention options that will assist and support a person with decision-making difficulties. The type of intervention will depend on the level of ability to make decisions, and it is envisaged that different options may be utilised at the same time in respect of different matters due to the fact that capacity is to be construed functionally.
The Functional Approach to capacity is time-specific and issue-specific, and therefore the assessment of capacity is narrowed to the particular decision which needs to be made. An assessment that a person may lack the capacity to make a decision at a particular time does not mean that person lacks the capacity to make it sometime in the future or to make another decision.
Decision-Making Assistant (DMA)
A DMA is a person appointed to assist in making decisions on personal welfare or property and affairs or both. The appointer of a DMA is someone 18 years of age or older who considers that his/her capacity is in question or will shortly be in question. DMA agreements may be revoked or varied by either party and must be registered with the Decision Support Service.
The functions of a DMA are to assist the appointer in obtaining relevant information and in advising the appointer by explaining relevant information and considerations. The DMA must ascertain the will and preferences of the appointer and assist the appointer in making and expressing a relevant decision. The DMA must also endeavour to ensure that the appointee’s relevant decisions are implemented.
The key difference between a DMA’s agreement and other arrangements in the Act is that the DMA shall not make a decision on behalf of the appointer but is rather there for assistance. Once the decision is made with the assistance of a DMA, it is deemed to be taken by the appointer.
Co-Decision Maker (CDM)
A person who requires greater decision-making assistance has the option of making joint decisions with a trusted family member or friend. The legislation provides that a person who is over 18 and considers that their capacity is in question or will shortly be in question may appoint a suitable person to make a decision jointly on one or more than one decision in relation to personal welfare, property and affairs or both.
A suitable person is one who is a relative or friend and who has such personal contact over a period of time that a relationship of trust exists, and is able to perform his or her functions. The agreement must be in writing and in compliance with the regulations, and it may not include disposal of property by way of gift.
Decision-Making Representation (DMR)
In certain limited circumstances, the Courts have the power to make orders in respect of the relevant person. Where for example a Court finds that the relevant person is unable to make a decision without the assistance of CDM or is otherwise unable to make a decision and the court is satisfied that the matter is urgent, the court may make the decision concerned on behalf of the relevant person. This is known as a decision-making order.
The court may also, or instead of making a decision-making order, appoint a suitable person to be a decision-making representative for the relevant person, for the purpose of making one or more than one specified decision on behalf of the relevant person in relation to his or her personal welfare, or property and affairs, or both. This is a decision-making representation order.
Where the court makes a DMR order, it appoints a suitable person who is aged 18 years or over, to be a Decision-Making Representative for the person for the purposes of making one or more than one decision specified in the order. The DMR makes decisions on behalf of the person to his or her personal welfare or property and affairs or both.
In essence, a DMR order allows a Decision-Making Representative to carry out substitute decision-making on behalf of the relevant person. However, there is a crucial difference in the substitute decision-making that is provided for under the Act and what has gone heretofore, where a ‘best interests’ approach was the guiding principle. The Act completely removes considerations of ‘best interests’ from the powers of substitute decision-makers. Instead, a DMR must act according to the will and preferences of the relevant person.
Capacity law should respect every person’s independence, dignity and freedom to make their own choices in line with their right to self-determination.