Patsy Fitzsimons: Assisted Decision-Making

Members of the clergy will be able to act as witnesses to the signing of decision-making assistance agreements, so it would be important that this is drawn to their attention before commencement.

What is the Assisted Decision-Making (Capacity) Act 2015?

The Assisted Decision-Making (Capacity) Act 2015 was signed into law in December 2015. However, it is not yet fully commenced, but this is expected to happen in a few short weeks. The Act recognises that, as far as possible, all adults have the right to play an active role in decisions that affect them. These decisions can be about their personal welfare and property and affairs.

The 2015 Act brings about important changes for people who require support to make decisions and for anyone interacting with them.

In summary, the 2015 Act:

  • Introduces new guiding principles about interacting with a person who has difficulties with their decision-making capacity
  • Establishes a tiered system of decision support arrangements for people who need help with making decisions
  • Abolishes the current wardship system and requires that all wards of court are discharged from wardship within three years of commencement of the Act.
  • Establishes the Decision Support Service

What is the Decision Support Service (DSS)?

The DSS is a statutory public service established within the Mental Health Commission by the Assisted Decision-Making (Capacity) Act 2015. The main role of the DSS is to provide information and guidance about the new support framework and to register and supervise decision support arrangements.

Who might need to interact with the DSS?

Any adult who needs support to exercise their decision-making capacity might need to interact with the DSS. This may include, but is not limited to, people with an intellectual disability, mental illness, dementia or acquired brain injury. The DSS will supply information in relation to the new regulated arrangements, which they may access to support their decision-making in relation to their personal welfare and/or property and affairs.

The DSS will also provide services to any person who wants to engage in advance planning by way of an advance healthcare directive or enduring power of attorney.

What is a ‘decision supporter’?

There will be five different decision support arrangements available. These arrangements are based on the different levels of support that a person may require to make a specific decision at a specific time.

There will be three tiers of decision support available for people who currently, or may shortly, face challenges when making certain decisions. These are:

• Decision-making assistance agreement: the person makes their own decision with support from their decision-making assistant. Their decision-making assistant helps them to access and to understand information and to communicate their decision. It will be possible for a member of the clergy to witness the signing of a decision-making assistance agreement for a person.

• Co-decision-making agreement: the person makes specified decisions jointly with a co-decision-maker as set out in a registered agreement.

• Decision-making representation order: the court appoints a decision-making representative to make certain decisions on the person’s behalf.

There are two types of decision support arrangement for people who wish to plan for a time in the future when they might lose capacity. This includes an advance healthcare directive and an enduring power of attorney.

Will people need a lawyer to make an arrangement?

No, they won’t need a lawyer to make a decision support arrangement. Detailed information on how to make a decision support arrangement will be available on the DSS website. However, if people wish to make an Enduring Power of Attorney under the new law, they will need a statement from a lawyer to confirm that they understand the arrangement.

Can a family carer apply to be a decision supporter?

For the following types of decision support arrangements, the person who may require support decides whether to make an arrangement or not:

  • Decision-making assistance agreement
  • Co-decision-making agreement
  • Enduring power of attorney
  • Advance healthcare directive

They must also choose whom they wish to appoint as their decision supporter. A family carer cannot make a decision support arrangement for the person, or on their behalf. The DSS will provide information for family members and carers who wish to help a person to make a decision support arrangement.

At the upper level and as a last resort, if someone believes that a person is unable to make certain decisions for themselves, they can ask the court to make a declaration about the person’s capacity and to make a decision-making representation order. The court will decide whether to appoint a decision-making representative for the person and who will act in this role.

What is an advance healthcare directive?

If a person wishes to plan ahead, they can make an advance healthcare directive.
This lets them set out their wishes regarding treatment decisions in case they are unable to make these decisions in the future. Importantly, it lets the person write down any treatment that they do not want.

Under the new law, a person will be able to appoint someone they know and trust as their designated healthcare representative to ensure their advance healthcare directive is followed. The designated healthcare representative may give or refuse consent to treatment as set out in the advance healthcare directive.

Can advance healthcare directives be cancelled?

Advance healthcare directives can be cancelled at any time if the relevant person has capacity to do so. The advance healthcare directive can also be changed. The advance healthcare directive will only start to apply if the relevant person loses their capacity. It can be a good idea for the person to review and update the advance healthcare directive on a regular basis to ensure that it reflects the person’s wishes. They should also review and update it following any major medical treatment or diagnoses to ensure it reflects their medical situation.

If someone already has an Enduring Power of Attorney, what will happen to it?
If a person has already made an Enduring Power of Attorney (EPA) under the Powers of Attorney Act 1996, then they can keep that arrangement and it will continue to be valid. The only change is that the DSS will be able to investigate complaints about an attorney under the 1996 Act. If a person wishes to make an EPA following commencement of the 2015 Act, the 2015 Act will apply. The most important difference is that an attorney under the 2015 Act comes under the supervision of the DSS.

What happens to current Wards of Court?
When the new law comes into effect, people will no longer be able to be made a Ward of Court. Any ward of court, or someone acting on their behalf, can apply to the wardship court to have their case reviewed. All current Wards of Court will be reviewed by the wardship court and discharged from wardship within three years after the new law comes into effect. The courts will decide whether a current Ward of Court needs formal support under the new Act.
Where can I get more information? www.decisionsupportservice.ie

Contact details:

Waterloo Exchange, Waterloo Road Dublin 4
Phone: +353 (01) 211 9750
Eircode: D04 E5W7

Email: queries@decisionsupportservice.ie

Please Note: Decision Support Service Director, Áine Flynn, would be happy to make a presentation to ACP members. Members of the clergy will be able to act as witnesses to the signing of decision-making assistance agreements, so it would be important that this is drawn to their attention before commencement.

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