Assisted Decision-Making Act
The Act supports people who may have difficulty making certain decisions due to a disability, illness, or age-related condition. The aim is to support a person in participating in decisions about their own life for as long as possible, rather than unnecessarily excluding them from those decisions.
It introduces a functional approach to capacity, meaning a person’s ability is assessed based on the specific decision at hand and the support they may need at that time.
The Act provides support for decision-making, tailored to the person’s needs and the specific decision involved
The Act applies to individuals with:
- Intellectual disabilities
- Acquired brain injuries
- Mental health conditions
- Dementia or other age-related conditions
What is capacity
Assisted Decision-Making (Capacity) Act 2015, Section 3(1) provides:
A person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made… in the context of the available choices at that time.
Under the Act, capacity is not always all-or-nothing. A person may be able to make some decisions independently, may need help with others, or may need support only at certain times. The law places greater emphasis on the person’s will and preferences, rather than simply asking what others think is best for them. A functional approach recognises that decision-making capacity can fluctuate and it is specific to the particular decision. Functional capacity is ‘issue specific and time specific’. While a person may have difficulty or lack capacity to make some types of decisions it does not mean that the person lacks capacity to make other types of decisions. It also recognises that a person may lack decision-making capacity at one time, but not lack capacity if presented with the same decision at another time. Functional capacity considers the person’s process of making a decision, and not the outcome of the decision itself.
Taking a functional approach to capacity means that a person should be supported to maximize their ability to make the decision themselves, or to maximize their participation in the decision-making process.
When does a person lack capacity
A person is considered to lack capacity to make a specific decision if they are unable:
- to understand the information relevant to the decision
- to retain that information long enough to make a voluntary choice
- to use and weigh up that information as part of the process of making the decision, or
- to communicate their decision by any means
An individual does not lack capacity simply because they:
- Need information to be explained to you in an appropriate way considering your circumstances
- Can only retain the relevant information for a short period of time
- Lacked capacity for a particular decision at one time but you may no longer lack capacity to make that decision, or
- Lack capacity for some decisions but you have capacity to make decisions on other matters
Types of Decision Support arrangements
Individuals who require support with respect to decisions have the following options:
- Decision-Making Assistance Agreements For individuals who can make decisions with help understanding or communicating information.
- Co-Decision-Making Agreements: Where a trusted person is appointed to make decisions jointly with the individual.
- Decision-Making Representation Orders Court-appointed representatives make decisions on behalf of the person.
- Two further mechanisms—Advance Healthcare Directives and Enduring Powers of Attorney (EPA)—allow individuals plan and set out their future preferences
What can a Decision making Representative Do?
Your decision-making representative can only make decisions that the court has set out in the order. For example, the decision-making representative can only manage your finances if that is what the court has allowed them to do in the order.
The court will list all of the decisions that the decision-making representative can make. This may include decisions about property and money matters, as well as decisions about personal welfare.
When making a decision for you, your decision-making representative must:
- Make every effort to find out your past and present wishes about this specific decision, for example, getting the views of your friends, family
- and trusted advisors
- Help you to be involved in the decision-making as much as possible
The court can choose different persons to act as decision-making representatives for different types of decisions. For example, they may appoint one person to manage your financial affairs based on their experience and another representative to manage your personal welfare and property.
For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.