O'Neill Litigation Solicitors

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Assisted Decision Making

Assisted decision-making in Ireland has recently been the focus of legislative and policy reform to ensure that individuals needing help making decisions can access the necessary support while retaining their autonomy and rights. The key legislation in this area is the Assisted Decision-Making (Capacity) Act 2015, which came into effect on 26 April 2023 and provides a statutory framework for supporting decision-making for people who may have difficulties making decisions without help. The new legislation replaces the old adult wardship jurisdiction of the High Court.

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

Guiding Principles:

Presumption of Capacity:
Everyone is presumed to have the capacity to make decisions unless proven otherwise. In addition, the new legislation sets out a functional test for the assessment of capacity. Your ability to make a decision is assessed based on the decision that has to be made at that time. You do not lose your capacity to make decisions in general.

Support to Make Decisions:
Individuals should be given all practicable help to make their own decisions before anyone considers that they lack capacity.

Least Restrictive Intervention:
Any intervention should be the least restrictive of the person’s rights and freedom.

Decision-Making Supports:

Decision-Making Assistant:
An individual can appoint a trusted person to assist them with decision-making.

Co-Decision-Maker:
An individual can appoint someone to make decisions jointly with them.

Decision-Making Representative:
If an individual cannot make decisions even with assistance, the court can appoint a representative to make decisions on their behalf.

Enduring Power of Attorney:
Allows individuals to appoint someone to make decisions about their personal welfare, property, or affairs if they lose capacity in the future.

Advance Healthcare Directives:
Enables individuals to set out their preferences for medical treatment in advance, in case they cannot make decisions in the future.

Safeguards and Oversight:

Director of the Decision Support Service (DSS):
A role established to promote awareness of the Act, provide information and guidance, and supervise the actions of decision-making representatives and co-decision-makers.

Review and Monitoring:
Guidelines to ensure that those involved in supporting decision-making comply with the principles and provisions of the Act.

Review and Monitoring:

Regular review mechanisms to ensure the person’s support arrangements remain appropriate and respect their rights and will.

Implications for Different Stakeholders:

Individuals:
Gain greater autonomy and tailored support for decision-making, enhancing their ability to live independently and make choices about their lives.
Families and Caregivers:
Clear guidelines on how they can support their loved ones, with legal backing to ensure their actions are in the best interest of the person they are supporting.
Healthcare and Legal Professionals:
Frameworks to follow that ensure compliance with the law, respecting the rights and dignity of individuals with capacity challenges.

Implementation and Ongoing Developments:

The implementation of the Assisted Decision-Making (Capacity) Act 2015 is an ongoing process, with continuous efforts to ensure effective application and awareness among the public and professionals. Training programs, public awareness campaigns, and updates to the Code of Practice are part of this ongoing effort to improve the system.

If you or a loved one is affected by the Assisted Decision Making Act 2015, please contact us.