The Assisted Decision-Making (Capacity) Act 2015 is expected to be commenced in June 2022.* In preparation for this, the Office of Wards of Court will stop accepting wardship applications from the 22nd of April unless there is a “documented urgency and a requirement for specified Court Orders”.*
*Update – On the 12th of May the Office of Wards of Court re-commenced taking wardship applications and that transitional arrangments will be provided for as an upcoming emndment to the 2015 Act.
*Update – The proposed commencement of the Assisted Decision Making (Capacity) Act, 2015 will not be enacted before the summer recess.
When the Act is commenced it will no longer be possible to be made a Ward of Court and all current Wards of Court will be reviewed and discharged within three years. A former ward may transition to one of the new decision making supports under the Act.
A Decision-making assistance agreement allows a person to appoint someone they trust to support them in making certain decisions. The decision-making assistant will be able to gather information on the person’s behalf (such as contacting a bank or healthcare provider) and help them go through their options. This person can also let others know what decision has been made. The agreement must be made in writing and include what decisions the person will need help with. A decision-making assistant cannot make decisions on behalf of the person.
A co-decision-making agreement allows a person to appoint someone they trust as a co-decision-maker. The agreement must be in writing and set out what decisions are to be made jointly. The person making the agreement must have their capacity assessed by a doctor and the agreement must be registered with the Decision Support Service (DSS). Certain people must be informed about the agreement such as a spouse and adult children.
The agreement will be monitored by the DSS. They may check that the person understands the agreement and will supervise the activities of the co-decision-maker. The co-decision-maker will be required to send a written report to the DSS every year.
A decision-making representation order allows the court to appoint someone to make certain decisions on your behalf, taking into account your wishes. This applies when a person is unable to make certain decisions even with someone else’s support. If it is possible the Court will appoint someone you know and trust. However if there is no one able to act on your behalf, the court can appoint someone from a panel of experts.
If you would like to plan ahead and do not have capacity issues, you can make an enduring power of attorney (EPA). An EPA is a legal document that gives the attorney considerable powers to manage your financial, business and personal care decisions. An EPA will not come into effect until you lose capacity.
Currently an EPA is created under the Powers of Attorney Act 1996. It cannot include healthcare decisions and it must be registered with the High Court. Under the new Act it will be possible for the EPA to include healthcare decisions. The EPA will have to be registered by the Attorney with the DSS. The attorney will be required to submit a list of your assets, liabilities, income and expenses to the DSS and to submit written reports.
If you are interested in creating an Enduring Power of Attorney contact us to arrange a consultation.
An advance healthcare directive is an agreement in which you can set out your wishes regarding medical treatment, should you later lose capacity to make such decisions. Requests for treatment are not legally binding, however they will be considered by doctors and other healthcare professionals. You can appoint a designated healthcare representative and this person will have the power to advise on and interpret your wishes.
At Padhraic Harris & Company Solicitors, we have 35 years of experience of dealing with complex legal issues surrounding capacity issues and wards of court. Contact Us