There are many important decisions to be made when planning for the future. One of those may include a situation where your health has deteriorated and you no longer have the capacity to voice your wishes.
WHAT IS THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015?
The Assisted Decision-Making (Capacity) Act 2015 provides multiple tools for ‘future proofing’ your future. It offers guidance on your preferred treatment should your health deteriorate and you are no longer able to express your wishes. An Enduring Power of Attorney effectively allows your nominated representative to look after your affairs when you are no longer able to do so. The 2015 Act dramatically changed the perception of capacity to a more fluid approach. Section 3 of the Act provides that “A person’s capacity shall be assessed on the basis of their ability to understand the nature and consequences of a decision to be made”.
The focus is now on the individual and their personal situation. This has the effect of moving us away from the perception of capacity as something you either have or not. Capacity is now an assessment to be made in the context of a point in time and the required decisions at that time.
The Act provides for any person over the age of 18 to make an Advance Healthcare Directive. This directive outlines the wishes of the person whose capacity is compromised in a situation where they require medical treatment. Not only does this afford a person control of their health even when they cannot express their intentions. It also removes a considerable weight from loved ones who are often faced with difficult choices during a sensitive time.
WHAT IS THE DIFFERENCE BETWEEN A POWER OF ATTORNEY UNDER THIS ACT AND A WILL?
The main difference is that a Will outlines the wishes of the person on death, whereas a Power caters for your decisions when you are still living but no longer have the ability to express your desired treatment should your health decline.
WHO IS IN CONTROL AND CAN I AMEND IT?
Caution should be exercised however when selecting a person to act as Attorney. A lengthy discussion is necessary so that they understand their role and your intentions fully. They not only exercise the decision but they must also record it. Supervision is undertaken by the Director of Decision Support Service, an office established under the 2015 Act. This Act has provided a move away from the courts. Any decision outlined is revocable and can be changed should you wish to do so.
An advance healthcare directive ensures a person’s requests are catered for when they cannot communicate. Alternatively, an advanced healthcare directive can mitigate confusion when a person cannot understand the options available to them. In an age of choice, this affords people an opportunity to ensure that they can control their own healthcare where their decision-making ability is compromised.
For further advice on these issues, you can contact a member of our team on 052 612 4344 or at [email protected]
This material is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.