“My father suffers from dementia and is residing in a nursing home. When my brother questioned the medication our father was on, we were told we had effectively no say in decisions relating to our father’s care. When my siblings started raising concerns about the standard of care my father was receiving they were either subjected to restricted visiting hours or were refused access to visit him. I assumed that a next of kin would have a say? Is there anything we can do to regain control of his affairs?”

In the second part of this two part series, I will set out the changes that are due to take effect- from October 2022 - to the law as it applies to a person’s capacity to make decisions. It is important to note that the Assisted Decision-Making (Capacity) Act 2015 (“the new Act”) has not yet been commenced and does not have any impact on current professional practice.

A key feature of the new Act is the introduction of a functional test for capacity. It recognises that people can have ‘good days’ and ‘bad days’ when it comes to assessing their ability to make decisions. This already applies to a situation where a person is making a will in that it is up to the solicitor taking instructions to satisfy themselves that the person understands what they are doing.

Enduring Power of Attorney

The new Act requires the person making the Enduring Power of Attorney (EPA) to register the instrument creating the EPA within five weeks of the execution of the instrument. The proposed new process requires the EPA to be registered while the donor has capacity and is in a position to discuss the EPA with the Director of the Decision Support Service (hereafter the Director). There is also provision that an application to vary an EPA cannot be made less than six months from the date of registration of the EPA and thereafter at intervals of not less than 12 months unless a shorter period is agreed by the Director.

Within three years of the coming into force of the new Act, all wards will be discharged from wardship into the new mechanisms (detailed below) under the new Act. There will be no more committees for the person and no role of the General Solicitor for adults. The assets of the wards which were lodged in Court and are held by the Accountant of the Courts of Justice will be released to the former Ward following review.

Capacity’s Assessment New Approach

Under the New Act, a person’s capacity shall be assessed on the basis of his or her ability to understand at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at the time. A person is entitled to exercise his or her legal capacity even if he or she may have difficulty making decisions.

Assisted Decision Making

Where a person considers his/her capacity to be in question or may shortly be in question, they may appoint a Decision Making Assistant. This is where the relevant person has capacity but needs assistance. Forms need to be specified by the Director ?and notice of the making of the agreement needs to be given to the Director.

Co-Decision Making

Where a person considers that their capacity is in question or may shortly be in question, they can appoint a person to make joint decisions with them. The form of the co-decision making agreement is to be specified by the Director ? It must be in writing and certain formalities must be observed. It must also be registered to be in force. An application to the Director ?needs to be made within five weeks. The register will be maintained by the Director.

Decision Making Representative - Circuit Court Process

This enables a relevant person or a person over the age of 18 years and who has a bona fide interest in the welfare of a relevant person to make an application to the Court. An application to the Court (other than an application by a relevant person) shall be on notice to specified persons. The Court can make a declaration that a relevant person either, lacks capacity unless the assistance of a suitable person as a co-decision maker is available to him or her, or, a declaration that the relevant person - the subject of the application - lacks capacity even if the assistance of a suitable person as a co-decision maker were made available to him or her. The decisions relate to his or her personal welfare or property and affairs or both.

The Court can make decisions on behalf of the relevant person where it is urgent or it is expedient to do so. This is called a Decision Making Order. The Court can appoint a decision making representative for the purpose of one or more decisions called a Decision Making Representative Order. The Court will take into account the known will and preferences of the person and is concerned with preserving relationships in determining the compatibility of the person and the decision making representative. Where there is no suitable person willing to act as a decision making representative, the Court shall request the Director to nominate two or more persons from the decision making representative panel.

Advanced Healthcare Directives

There is also provision for statutory recognition for Advanced Healthcare Directives. These relate to a current wish to a refusal of certain treatment in the future when a person loses capacity. A directive requesting specific treatment will not be legally binding but maybe taken into account. There are certain formalities that need to be complied with such as it has to be in writing and signed by two witnesses. A person can appoint a Designated Healthcare Representative.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie