The assisted decision-making framework was established under the Assisted Decision-Making (Capacity) Act 2015. Whilst the Act has not yet been commenced, this is set to take place mid-2022 and is purpose is to replace Wardship.
“Capacity” is the ability to understand the nature and consequences of a decision in the context of the available choices.
The Assisted Decision-Making & Capacity Act, enacted on the 26th of April 2023 aims to return autonomy to the relevant person, allowing and assisting them to make decisions in relation to their person and property in a collaborative and supported way. We start out from the position of assumed capacity in relation to all matters and thereafter set out the areas that the relevant person requires assistance.
Under the Act there are 3 possible arrangements depending on the level of capacity of the relevant person:
- Decision Support Assistant – this is a person appointed to assist the relevant person by obtaining information, discussing it with the relevant person, and helping the relevant person make an informed decision in relation to the matters at hand. This is the least intrusive decision support arrangement. The name of the Decision Support Assistant is recorded with the Decision Support Service (DSS).
- Co-decision Maker – this is a person appointed to act jointly with the relevant person as regards certain decisions to be made with the relevant person. There is an Agreement put in place setting out the terms under which the co-decision maker is to carry out their role. This agreement is registered with the DSS.
- Decision Making Representative (DMR) – is a person appointed by Court Order to make decisions on behalf of the relevant person where they are found to lack capacity. Such orders can be made with the consent of the relevant person. This is only to be utilized where absolutely necessary. It is similar to the role of Committee under the old Wardship regime.
In relation to the foregoing, it is accepted that a relevant person may have capacity in relation to certain matters relating to their personal welfare e.g., where they want to live, what they want to wear, attendance at social events but may lack capacity in relation to managing their finances or property. A person may decide to appoint a Decision Support Assistant, Co-decision Maker or DMR in relation to certain matters during their lifetime when they still have capacity should they so wish.
If the relevant person, no longer has capacity and have not executed an EPA, a Court application may be brought by a concerned family member or friend. This party is known as the intervener. The intervener can apply to be appointed under any of the above arrangements or combination of arrangements. All decisions made in relation to the relevant person must be made always keeping in mind the will and preference of the relevant person.
All Court applications must be accompanied by a medical report wherein the relevant persons capacity is assessed. Each application is assessed or decided by a Judge on a case-by-case basis and a person’s assisted decision-making plan may involve a combination of the above matters.
The DMR has serious reporting duties. They must keep accounts in relation to all incoming and outgoing monies in relation to the relevant person’s finances and must lodge accounts on a yearly basis with the DSS.
In circumstances where the relevant person has substantial assets a proposal by way of a financial investment plan should also be submitted to the Court in order that the Court can see that the DMR has a road map going forward in relation to the relevant persons funds. All proposals should take into account the relevant person’s requirements as regards lifetime care. The Court favours conservative investment.
We have Cathal Lawlor on site who is a Chartered Tax Advisor and Estate Planner and can assist in that regard.