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ASSISTED DECISION MAKING (CAPACITY) ACT 2016

This little known Act was signed into law by the President early in January 2016 but seems to have slipped under the radar of most people. An interesting article was written in the Irish Times by Patricia Rickard-Clarke on the 23rd October 2015. The consequences of the Act are far reaching as far as decision making by people who previously would have been deemed not to have been able to make a decision because of lack of capacity. Section 3 of the Act deals with a person’s capacity (or lack of capacity) to make a decision and sets out a series of tests as to whether a person does or does not have this capacity. One of the guiding principles of the Act (Section 8) is that it shall be presumed that the person whose capacity is in question (or may shortly be in question) has capacity unless the contrary is shown in accordance with the provisions of the Act.

The Act goes on to provide that a person whose capacity is in question (and who is over 18) can appoint another person to assist him/her in making one or more decisions regarding his or her personal welfare or property and provides for a written agreement to be drawn up in that regard. Certain people are precluded from being appointed as decision making assistance, i.e. a person under the age of 18 years or if the potential decision making assistant has been convicted of an offence relating to the person or property of the proposed appointer or if a safety or barring order has been made against the proposed decision making assistant. Section 13 of the Act provides for a co-decision making agreement whereby the co-decision maker jointly makes decisions with the appointer in relation to the appointer’s personal welfare or property and affairs. There are protections here that an appointer shall not include in a co-decision making agreement provisions for the disposal of his or her property by way of gift.

There is a list of 8 types of persons deemed to be non-eligible to be appointed as a co-decision maker which includes for example the owner of a nursing home or a mental health facility in which the person who intends to appoint a co-decision maker resides. The Act lists the functions of a co-decision maker (Section 16) and provides for circumstances when such an agreement shall be null and void. Also such agreements must be registered and does not come into force until it is so registered with a Director of the Decision Support Service. The Act goes onto provide that the co-decision maker will make a report to the director in writing as to the performance of his or her functions within 12 months after the registration of the co-decision making agreement at intervals of not more than 12 months thereafter. There are provisions for variation of the agreement for its revocation and a complaints procedure as well as a provision for applications to the Court and punishment in relation to any offences committed in relation to Co-Decision Making Agreements. The Act also provides for an application to be made to the Court where there is not suitable person available to act as a co-decision maker.

Part 6 of the Act deals with Wards of Court applications and Part 7 of the Act deals with the Powers of Attorney Act 1966 which substantially and radically changes that Act.

Part 8 of the Act deals with the making of advanced health care decisions the purpose of which is to enable persons to be treated according to their will and preferences and which enables the person over 18 and who has capacity to refuse treatment for any reason including a reason based on his or her religious beliefs in spite of the fact that the refusal appears to be an unwise decision not based on sound or particular principles or may result in his or her death. This part of the Act requires a separate article which will hopefully follow in due course.

Éamonn Fleming

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