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The Assisted Decision-Making (Capacity) Bill 2013

  • Ireland
  • General

23-12-2013

The long awaited Assisted Decision-Making (Capacity) Bill 2013 (the ‘Bill’) was published on 17 July 2013 which is intended to repeal the Lunacy Act 1871. We are one step closer to reform.

The Bill has been welcomed by many given the many positive steps it proposes. The most significant change is the new definition of ‘capacity’, which shall now be assessed on the basis of a person’s ability to understand the nature and consequences of a decision in the context of the available choices at the time the decision is made. A person will lack the ability to have capacity where they are unable to understand information relevant to decisions, retain information (retention even for a short period may be adequate), use or weigh that information as part of the process of making the decision or communicate by any means including a third party.

Further changes in the law include providing the relevant individual with assisted decision making rather than the former ‘all or nothing’ approach to legal capacity. Support provided will include a decision making assistant and maker. Where an individual considers that their capacity is in question or may shortly be called into question they may appoint ‘another’ to assist in making decisions in relation to property or personal welfare.

In addition to this the individual may appoint a ‘co-decision maker’ who can jointly make decisions in relation to issues and can co-sign documents. A ‘decision-making representative’ is another role proposed in the Bill. This person can be appointed by the Circuit Court when a declaration is sought to determine whether an individual has capacity to make a decision or needs assistance to do so.

It is proposed that the current Ward of Court system will be replaced by a framework which will assist people making financial and other welfare decisions. The function will now be transferred to the Office of Public Guardian who will in turn monitor the acts of all ‘decision-making representatives’ and ‘co-decision makers’. Any adult who is now currently a ward of court will have their case reviewed within three months of the Act being commenced. Where that individual is found to have capacity they will be discharged from the wardship.

The Bill also provides an avenue in relation to informal decision making. Liability is now reduced on the part of the decision maker in relation to the incapacitated individual, where decisions relating to personal welfare and healthcare are made and where there have not been any formal decision making arrangements in place.

Enduring powers of attorney made after the commencement of the Act will be subject to a more modern regime and may relate to a donor’s property, personal welfare and affairs.

Ultimately the Bill proposes that we move away from the paternalistic ‘acting in the patient’s best interests’ approach to one in which the question is ‘what would the patient have wanted’ approach.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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