Anyone of us could have decision-making problems at some stage in our lives. A lack of mental capacity could be due to a stroke or brain injury, a mental health problem, dementia, a learning disability or alcohol misuse.
Losing mental capacity does not mean that you cannot make your own decisions in line with your known ‘Will and Preferences’.
The Assisted Decision-Making Capacity Act 2015 (the Act) was enacted in December 2015 and governs the law in relation to vulnerable adults who are experiencing difficulties with decision making. This reforming piece of law repeals the outdated Wards of the Court system and implements a modern framework of supported decision-making.
What is Capacity?
Legal capacity and mental capacity are distinct concepts. Legal capacity is a recognition that all persons have a right to make decisions and have those decisions recognised regardless of any kind of disability. It is key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors.
This distinction is helpful in understanding the modern policy of enabling and encouraging people to make their own decisions and is a move away from the focus on guardianship or other people making decisions in the ‘best interests’ of the person. This new law introduces a number of mechanisms into Irish law that enables decision-making by those who might otherwise be unable to do so. These concepts are scaled depending on the level of intervention required and each firmly puts the ‘will and preferences’ of the person as predominant.
The Act requires that the assessment of a person’s capacity is issue-specific and time-specific. Therefore, a person who has an intellectual disability or dementia, who retains some mental capacity (or decision-making capacity), will be able to make decisions depending on the particular decision at a specific time. A person’s capacity is assessed on the basis of his or her ability to understand the nature and consequence of a decision in the context of the available choices at the time the decision is made.
The easiest way of dealing with the possibility of future mental incapacity is to plan ahead for it now by executing a Power of Attorney and an Advance Healthcare Directive. Once this is done you are not relying on others such as friends or family members to help make your decisions in the event of a loss of mental capacity.
Keep an eye out for my other blogs on capacity issues. Capacity law should respect every persons independence, dignity and freedom to make their own choices in line with their right to self-determination.