The new Assisted Decision-Making (Capacity) Act (the “Capacity Act”) is a landmark piece of legislation that will affect everyone in Ireland for decades to come.
The main purposes of the Capacity Act are to:
- Improve decision supports for people lacking in capacity
- Broaden the scope of Enduring Powers of Attorney to include healthcare decisions
It will be key for anyone considering planning for the future to think about a Power of Attorney. Acting early will provide certainty in respect of your healthcare treatment and your finances into the future.
Furthermore, those experiencing difficulties with managing their affairs due to capacity issues will now have the option of entering into an agreement to appoint a Decision-Making Assistant or Co-Decision-Maker. This will enhance the ability of a person to manage their affairs and deal with third parties efficiently, such as banks, insurance companies, accountants, and solicitors in managing their affairs.
1. Decision Making
The Capacity Act will promote the rights and interests of people who may need support in decision making as a result of loss of capacity.
There are three major roles envisaged by the Capacity Act which contain different levels of intervention depending on the level of capacity or the relevant person:
The job of a Decision-Making Assistant is to advise and assist the relevant person to make certain decisions. The Decision-Making Assistant is appointed by the relevant person and Decision-Making Assistance Agreement is put in place. Importantly the Decision-Making Assistant does not make decisions on behalf of the relevant person.
A Co-Decision-Maker jointly makes decisions with the relevant person on the relevant person’s personal welfare or property and affairs or both. The Co-Decision-Maker is appointed by the Relevant Person and there is a Co-Decision-Making Agreement between them.
A Court can make an Order to appoint a Decision-Making Representative for the purposes of making one or more than one decision specified in the Order regarding the Relevant Person’s personal welfare or property and affairs or both.
2. Enduring Powers of Attorney and Advance HealthCare Directives
The Capacity Act will greatly broaden the power an individual has to plan for their future. It will allow an individual to plan for a situation in which they may lose capacity, by appointing an Attorney to make certain decision for them in respect of their property, wishes and healthcare decisions.
While a person may well have made a Will to give effect to their wishes after death, it is important to note that a Will has no legal currency until person has deceased, whereas, an Enduring Power of Attorney deals with a person’s wishes where they may have lost capacity prior to death.
The Capacity Act is bringing with it some of the most important changes to the law for decades which will enhance the power each one of us has in respect of planning for the future irrespective of the level of capacity we have.
Hartnett Hayes Solicitors specialise in Capacity & Disability Law and Mental Health Law and have experience in future planning with respect to Enduring Powers of Attorney.
We can advise on and assist with drafting of Enduring Powers of Attorney and decision-making supports and agreements under the new Capacity Act.
We are specialist Mental Health & Capacity Lawyers and had decades of experience in these specialised areas of law.
Should you have any queries or like to know more, you can contract our office on 074 9522208 or [email protected] to book a consultation with one of our solicitors.