Assisted Decision-Making (Capacity) Bill 2013

(14 Mar 2014)

The Assisted Decision-Making (Capacity) Bill was published on the 17th July 2013. 

If it is implemented, it will in a progressive and positive way, reform the law relating to people who require assistance exercising their decision making capacity. 

When the legislation is finalised, it is proposed that the current Ward of Courts system will be replaced by a new framework that will assist people making financial and other welfare decisions.  Any adult who is currently a Ward of Court will have their case reviewed within three months of the Act being commenced and if that individual is found to have capacity they will be discharged from Wardship. 

The new Bill includes a presumption of capacity and specifies that interventions in relation to decision making assistance must minimise restrictions on rights and freedoms of action and have regard for the “dignity, bodily integrity, privacy and autonomy” of a person. 

The significant change in the Bill aside from a presumption of capacity, is the new definition of capacity.  This will now be assessed on the basis of a person’s ability to understand the nature and consequences of a decision, in the context of various available choices at the time the decision is made. 

The Bill proposes a novel legal framework for a range of decision making supports. 

The first level of assistance is “Assisted Decision-Making” where an individual, voluntarily appoints another person to assist with certain specified decisions relating to their personal welfare, property and affairs. 

The second level of assistance is “Co-Decision-Making” where the Circuit Court Declares that an individual’s capacity is reduced for specific decisions but he or she would have capacity for those decisions if he or she voluntarily appointed a “Co-Decision-Maker” to share authority and responsibility for those decisions. 

The third level of assistance involves “Decision-Making Representatives” such a person may be appointed by the Circuit Court when a Declaration is sought to establish, whether an individual has capacity to make a decision or needs assistance to do so. 

The Bill also contains new and novel provisions for the creation of Enduring Powers of Attorney which are made after the commencement of the Act this will reflect a more informal decision making regime that govern day to day care decisions made already, in many instances, by families and carers, on an everyday basis.

© 2008 Arthur McLean Solicitors