Proposed changes in the law on legal capacity

Proposed changes in the law on legal capacityDarius Whelan, School of Law, UCCBrothers of Charity conference, 22 Oct. 2015

2

3

Assisted Decision-Making (Capacity) Bill 2013

4Picture from specialolympics.ie

5

Capacity means decision-making capacity

Personal welfare or financial issuesOperate bank account, spend money, decide where to live, make medical decision

Capacity means capacity at time decision is made You lack capacity if you are unable to

Understand info relevant to decisionRetain that informationUse/ weigh that information, orCommunicate your decision, perhaps with assistive technology

6

It is presumed you have capacity All practicable steps must be taken

to help you to make decisionMaking an unwise decision does not

make you unable to make decision

Intervener must give effect to your will and preferences [Example of intervener – person helping you to make a decision]

Guiding Principles (examples)

7

[“Best interests” will no longer apply]

• You can appoint a Decision-Making Assistant (DMA) to assist you in making decisions

You must be over 18 You can have two DMAs

• You must consider your capacity is in question or may shortly be in question

• DMA can assist you in obtaining information; explain information; find out your will and preferences; ensure your decisions are implemented

• Notify office of Director of Decision Support Service

Decision-making assistant (DMA)

8Photo by Joshua Earle from Unsplash CC0

You can appoint a Co-Decision Maker (CDM) to jointly make decisions with you

You must be over 18 CDM must be trusted relative/ friend Circuit Court approves the co-decision-

making agreement

Co-Decision Maker (CDM)

9Picture – CourtsService.ie

10

Circuit Court appoints DMR for personPerson lacks capacity to make decisions, even with CDM

DMR may make decisionsThis is substitute decision-making Supervised by office of Decision Support Service

Decision-Making Representative (DMR)

11

Bill is not yet law.Once passed, more detailed guidance and training will be necessary.