In farming families, succession and estate planning can be major considerations. People usually take satisfaction in knowing that their affairs are in order and their wishes will be clear when they are gone.

But what about our wishes while we are still here? What happens if we lose the ability to exercise our right to make decisions for ourselves due to a sudden accident or progressive illness? How can we ensure that our wishes about money, property and healthcare will be understood and respected? And how do we support family members in the here and now, who face lifelong challenges with decision-making (for example, due to intellectual disability or enduring mental illness)?

On 26 April, 2023, the Assisted Decision-Making (Capacity) Act 2015 finally became operational, and the newly established Decision Support Service began delivering its statutory functions.

Next of kin

There is a prevailing myth, particularly when it comes to decisions about healthcare, that if a person does not have capacity to decide, their ‘next of kin’ has the authority on the basis of their close family relationship. In fact, it has never been true that an adult has automatic legal authority to make decisions for another adult outside of a legal arrangement.

Before the 2015 Act, options for legal arrangements were limited. Since the Powers of Attorney Act 1996, an adult with capacity to do so has been able to plan by making an enduring power of attorney. A ‘donor’ is able to create a document, appointing a trusted person (the ‘attorney’) to make decisions about property and personal care in the event of the adult’s later ‘mental incapacity’.

Otherwise, the only available legal mechanism has been the ‘wards of court’ system operating under pre-Independence legislation - the Lunacy Regulation (Ireland) Act of 1871. In wardship, the court declares the ward to be, ‘of unsound mind and incapable of managing his person or property’. Of approximately 2,200 adults in wardship in 2022, more than half were older adults with dementia.


With the 2015 Act, ‘capacity’ is now assessed in a time and issue-specific way. There is no medical component to this approach and the Act does not use the phrase “mental capacity”. If a person’s capacity must be assessed, the functional assessment asks if the person can understand the relevant information, retain the information long enough to decide, use or weigh up the information and communicate a decision with whatever communication aids are required.

The guiding principles in the Act are aligned to the United Nations Convention on the Rights of Persons with Disabilities, which Ireland ratified in March 2018. The Act states that an adult is presumed to have capacity until the contrary is shown and must be supported as far as possible to make decisions independently. An unwise decision is not evidence of a lack of capacity

New support framework

A new three-tiered support framework has been designed to allow access to graduated supports in relation to decisions about property, affairs and personal welfare, if necessary.

At the lowest tier, a person who believes that their own capacity is or may soon be in question may appoint a decision-making assistant. The decision-making assistant helps the person to communicate their decision through obtaining and explaining relevant information.

At the middle tier, a person may appoint a co-decision-maker to make specified decisions jointly with them, as set out in a formal co-decision-making agreement registered with the Decision Support Service.

At the upper tier - and only as a last resort - the Circuit Court may appoint a decision-making representative to make limited decisions on behalf of a person. The decision-making representative must continue to have regard to the person’s will and preferences and may not exercise restraint or deprive the person of their liberty.

Enduring power of attorney

Any enduring power of attorney made since 26 April is now registered with the Decision Support Service, and attorneys will now be supervised by and submit accounts and reports to the Decision Support Service.

An enduring power of attorney may not cover decisions about medical treatment. Instead, the tool to plan treatment is an ‘advance healthcare directive’.

An adult with capacity may create an advanced healthcare directive, to provide an authoritative statement of his or her will and preferences in relation to treatment decisions.

An advance healthcare directive becomes effective if the person loses capacity to make treatment decisions and a refusal of treatment contained in the directive is binding. A person may also appoint a designated healthcare representative to ensure that their advance healthcare directive is effective.

Advance planning

The Decision Support Service has been busiest in relation to facilitating the creation and registration of enduring powers of attorney. A key objective of the service is to promote advance planning. A recent survey conducted by Safeguarding Ireland found that only 11% of adults have an enduring power of attorney and only 4% have an advance healthcare directive.

It appears that there is a tendency to associate advance planning with later life, or to assume that it is relevant only where there are significant assets, or to wait until capacity becomes an issue, which unfortunately may be too late. Check out

*This article is intended as an overview of certain parts of the Assisted Decision-Making (Capacity) Act 2015 and related matters and should not be relied on as legal advice or opinion.

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