On 26 April 2023, the Assisted Decision Making (Capacity) Act 2015, amended and elaborated by the Assisted Decision-making (Capacity) (Amendment) Bill 2022, came into full effect, eight years after it was first passed by parliament. The Act is aimed at supporting decision-making and maximizing individuals’ capacity to make decisions and adopts a supported decision-making framework and a nuanced understanding of capacity. The Act thus abolishes and replaces the guardianship or Ward of Court system previously in place in Ireland, which was established by the Lunacy Regulation (Ireland) Act 1871. The implementation of the Assisted Decision Making (Capacity) Act 2015 marks a significant shift in policy and practice from a medical to a rights-based approach to issues of capacity, with significant implications for persons suffering from conditions that may affect decision-making related to care, their family members, health and social care providers, and the broader health and social care system.
From 26 April 2023, the newly established Decision Support Service, based within the Mental Health Commission, will oversee new decision support arrangements (see below). No new Wards of Court will be created, and it is planned that any persons designated Wards of Court under the old framework will have their capacity (re-)assessed and brought under the new legal framework within three years.
The Act makes provisions for five different decision support arrangements for people who have challenges with their capacity and who may need support to make certain decisions. These arrangements are based on the different levels of support that a person requires to make a specific decision at a specific time.
There are three types of support arrangements for people who currently, or may shortly, face challenges when making certain decisions:
- Decision-making assistance agreement: Intended for people who require support in making certain decisions. The agreement allows a person to appoint someone they know and trust as a decision-making assistant. The decision-making assistant helps the person obtain information and explain the information. They can help the person understand and weigh up their options.
- Co-decision-making agreement: If a person is unable to make certain decisions on their own, they can appoint a person they trust as co-decision-maker under a co-decision-making agreement. This agreement lets a person write down decisions they need help with and give someone the legal authority to make those decisions jointly with them. These decisions can be about personal welfare, property, or financial matters.
- Decision-making representation order: If a person is unable to make certain decisions even with someone else’s support, the court may appoint a decision-making representative, where possible a person they know and trust. The decision-making representative is appointed by the court to make certain decisions on the person’s behalf, taking into account their wishes.
In addition, there are two types of arrangements for people who wish to plan for a time in the future when they might lose capacity:
- Advance healthcare directive: This arrangement allows a person to write down their wishes about healthcare and medical treatment decisions in case they are unable to make these decisions in the future. A person can appoint anyone they know and trust as their designated healthcare representative to ensure their advance healthcare directive is adhered to.
- Enduring power of attorney: This arrangement allows a person to appoint someone they trust (does not have to be a lawyer) as their attorney. The attorney’s role is to act on the person’s behalf to make certain decisions if they are unable to do so in the future.