Assisted Decision-Making

Understanding Assisted Decision-Making in Ireland

In Ireland, the framework for assisted decision-making has been significantly reformed to better respect the rights of individuals who may need support in making decisions due to capacity issues. The Assisted Decision-Making (Capacity) Act 2015, which is a critical piece of this reform, aims to provide a modern statutory framework to support decision-making by adults who have difficulty in this area. This legislation replaces the outdated Ward of Court system and aligns more closely with the principles outlined in the United Nations Convention on the Rights of Persons with Disabilities.

Key Concepts of the Assisted Decision-Making (Capacity) Act 2015

1. Presumption of Capacity: Every adult is presumed to have the ability to make decisions unless proven otherwise. The assessment of a person's capacity must be specific to the particular decision at the time it needs to be made.

2. Graduated Support: The Act introduces a range of supports to assist people in decision-making, which can be tailored according to the individual's requirements to ensure they operate at the maximum level of decision-making autonomy possible.

Types of Decision Support Available

1. Assistance Arrangements:

  • Decision-Making Assistant: Individuals can appoint a decision-making assistant to assist them in gathering information, understanding options, and communicating their decision. This assistant acts under the direction of the appointing person.

2. Co-decision-making:

  • Co-decision-Maker: This is for people who are capable of making decisions with someone to help them. A co-decision-maker is appointed by the Circuit Court on the application of the person needing support, and they make decisions jointly.

3. Decision-Making Representatives:

  • If a person lacks the capacity to make certain decisions even with assistance, the Circuit Court can appoint a decision-making representative to make decisions on behalf of that person. These decisions are to be made in accordance with the will and preferences of the person to the greatest extent possible.

4. Specific Decision Orders:

  • For one-off or time-limited decisions where a person lacks the capacity to make that particular decision, the Circuit Court can make an order for that specific decision.

5. Advance Healthcare Directives:

  • An adult with capacity can make an Advance Healthcare Directive specifying what medical treatment they should or should not receive if they lack capacity in the future. This directive must be respected by healthcare personnel, subject to specific provisions.

New Bodies Established by the Act

  • Decision Support Service (DSS): Within the Mental Health Commission, the DSS is responsible for the registration of decision support arrangements, including co-decision-making agreements, decision-making representatives, and advance healthcare directives.

Impact of the Legislation

This legislation underscores a shift from a paternalistic view towards a more rights-based approach in treating individuals with respect and dignity. It recognizes the varying degrees of support different individuals may need to make decisions about personal welfare, property, and financial matters. The intent is to empower, promote autonomy, and protect vulnerable individuals.

Legal Assistance and Advice

Given the complexities and the profound implications of the legal procedures involved, individuals considering these arrangements or their family members should seek detailed legal advice. At Shannons Probate Swords we specialise in health law or elder law and can provide guidance tailored to the individual’s situation, ensuring compliance with the law while respecting the individual's rights and preferences.

The Assisted Decision-Making (Capacity) Act effectively acknowledges that capacity can vary over time and across different domains, advocating for a support model that adjusts to the needs and circumstances of the individual.

Talk to Shannons Solicitors at Probate Swords today!

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Let us help you ensure that your or your loved one’s wishes are honoured precisely, and the legacy is handled with care and expertise.

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