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29 Sept 2022

EXPLAINER: 'What happens when I cannot look after myself anymore?' - by Lynch Solicitors Ltd

EXPLAINER: 'What happens when I cannot look after myself anymore?' - by Lynch Solicitors Ltd

EXPLAINER: 'What happens when I cannot look after myself anymore?' - by Lynch Solicitors Ltd

The importance of the Assisted Decision Making (Capacity) Act 2015

For over 140 years, the Lunacy Regulations Act provided the foundation for Ireland's approach to capacity issues. The Assisted Decision Making Act has thankfully replaced it.

The change has introduced an entirely new approach in this critical legal area.

It makes a fundamental change to how we deal with the question of how we will help people when they reach a stage in life when they cannot make decisions.

Assisted Decision-Making (Capacity) Act 2015 - What is it?

  • This Act provides for the individual's right to autonomy and self-determination to be respected through an Enduring
    Power of Attorney and an Advance Healthcare Directive
  • Both of these are made when a person can make decisions
  • They come into effect when a person may lack decision-making capacity
  • It allows legally recognised decision-makers to support people in maximising their decision-making powers
  • It places a legal requirement on service providers to comprehensively enable a person to decide on the provision of a range of supports and information appropriate to their condition
  • It abolishes the Wards of the Court system. It provides for a review of all existing Wards to discharge them entirely or transition those who still need assistance into the new structure
  • It establishes a Decision Support Service with clearly defined functions.

The Director of the Decision Support Service will have the power to investigate complaints about any action by a decision-
maker in connection to their roles as such decision-maker.

  • It applies to everyone and all health and social care settings
  • In addition to an Enduring Power of Attorney, other mechanisms will be available to help you if you lose the capacity to manage your affairs
  • When available, these will complement an Enduring Power of Attorney and Advance Health Care Directive

A Move for the Better

Under the old system, capacity was a whole or nothing status. You either had it, or you did not.

It did not matter if the decision was what to get your nephew for his birthday, where to go on holiday or what health
care treatment you were to receive.

Under the new system, capacity is decided on an issue-by-issue basis. A person may be deemed able to choose Bulgaria over Barcelona for a sun getaway but not as to whether they should receive medication.

The Integrity of the Person

Motivation for the change arose from a realisation that the old "all or nothing" system was inconsistent with the modern approach to integrity of the person and human rights.

Crucially, the new legislation also obligates people such as health care professionals, accountants, doctors or solicitors. They need to help those suspected of lacking the capacity to make a decision rather than declaring them incapable outright.

Fresh Approach

The statute specifies that the professional must do all they can within reason to help the person in question make a decision. 

The Act prevents someone from 'ticking the box of incapacity and moving on.

It requires those charged with caring for the person to go further.  They need to determine the level of capacity and assist in decision-making processes.

As such, the old Ward of Court, the absolute approach, has been abolished in favour of the new assisted decision-making process.

For those previously declared 'Wards of Court', each person is to be reviewed to establish the correct capacity level.

A significant development is the updated Enduring Power of Attorney. This now includes a review and report mechanism.  

The Act transfers the management of this area to a Central Authority.

Another significant development is the ability to create what has been termed an 'Advance Health Care Directive'.  

Essentially, an Advanced Health Care Directive is a  future health care plan. It sets out preferences for future treatment if they no longer have the capacity to make care decisions.

A person can now, therefore, decide if they want intervention or not in certain circumstances or if they wish a specific treatment or other.

A directive can be made at any point as long as you can. It is very relevant to how you want treatment to develop at the early stages of diseases such as Parkinson's.

A directive can also be changed at any time while you can do so. If you change your mind, it does not irrevocably commit you to certain future decisions.

A Welcome Change

While the new approach is in its infancy in Ireland, the move is welcome. It is a step forward in human rights and preserving the individual's dignity. It provides us with several different mechanisms to deal with helping vulnerable and older adults to manage their

For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124244.

The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

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