The much-debated Assisted Decision Making (Capacity) Act 2015 (the “Act”) was enacted on the 30th December 2015, but requires commencement orders to bring it fully into effect. Recently piecemeal sections of the Act have been commenced, however the more comprehensive sections remain in limbo. The Act provides for a new test for capacity, creates a concrete framework to assist individuals in making decisions, radically overhauls the antiquated Wards of Court system, modifies the law regarding Enduring Powers of Attorney (EPOA), and creates a new legal office – The Director of the Decision Support Service.
Capacity Prior to the Enactment of the Act
Capacity refers to an individual’s ability to make their own decisions. Prior to the enactment of this legislation capacity was black or white – an individual either had or did not have capacity. An EPOA could have been put in place prior to incapacity, appointing an attorney who would act for them if incapacity was suffered at some point in the future.If no EPOA was executed, the only legal mechanism for those deemed incapacitated was wardship, whereby the person fell under the supervision of the High Court and a committee appointed to assist. The wardship system relies heavily on medical evidence and is essentially a cognitive skills test, and has long been held to be an unreliable proof that a person has lost capacity to manage all of their affairs.
Capacity Under the Act
The legislation has seen a shift to the broad-minded functional test for capacity, that is an issue and time specific test and it is altogether more different to the all or nothing test that exists for wardship. This functional approach allows for changes in a person’s capacity over time. Capacity for decision-making is defined as the ability to understand, at the time the decision is being made, the nature and consequences of the decision in the context of the available choices.
A person lacks the capacity to make a decision if they are unable to:-
- Understand the information relevant to the decision
- Retain that information long enough to make a voluntary choice
- Use or weigh that information as part of the process of making the decision, or
- Communicate their decision.
However, a person should not be said to lack capacity if they:-
- Require information to be explained to them in a way that is appropriate to their circumstances
- Can only retain the relevant information for a short period of time
- Did lack capacity for a particular decision at one time but may no longer lack capacity to make that decision
- Lack capacity for some decisions but have capacity to make decisions on other matters.
The Act introduces a system of supports, giving those with diminished capacity greater autonomy, enabling them to have their own voices heard, and facilitated.
Decision Making Support Structures
a) Decision-Making Assistant
The assistant will help the person making the decision to obtain the information needed to make the decision, explain the information to the person and obtain the person’s will and preference in relation to the decision. The assistant will also communicate the decision if necessary and follow up on the decision to ensure it is implemented. The appointment is done by way of a formal written agreement, the content and formalities of which are the subject of Ministerial Order (which is awaited).
An individual may appoint someone else to jointly make one or more decisions about their welfare and property and affairs. The co-decision-maker will obtain the information needed, advise on decisions and make decisions jointly with the appointer based on their will and preferences. The co-decision maker will help the person express a decision and ensure that the decisions are implemented. A written agreement setting out amongst other things, the types of decisions that will require intervention, must be registered with the Director of the Decision Support Service within five weeks of signing. It does not come into force until registered. Notice of registration of this agreement must be given to certain specified family members who may object to registration proceeding. Each Agreement is reviewed by the Director of the Decision Support Service. The Co-Decision-Maker must file a report with the Director every year, setting out what they have done during the period, including details of all transactions relating to the person’s finances, together with details of any costs and expenses paid.
Decision Making Representative
The Act provides for intervention by the courts in certain circumstances where it is believed a person lacks capacity to such an extent that they require decisions to be made on their behalf entirely by someone else. This is a court appointed representative. Essentially this appointment applies to individuals who cannot make decisions even with assistance, whose incapacity is much more acute than for the options set out above.
Wards of Court Procedures
The Act will eventually see the end of wardships, with no new wardships once the Act is commenced. There are presently 2,600 wards of court. Given the divergence of capacity requirements, it may be found that some wards of courts have capacity, and if so they will be immediately discharged from wardship and their property returned to them. Where a ward is declared to lack capacity, the court may discharge the person on registration of a Co-Decision-Making Agreement. Where the ward is declared to lack capacity even with the appointment of a Co-Decision-Maker, a Decision-Making Representative will be appointed and the property of the ward returned to them.
Enduring Powers of Attorney
A new regime for EPOAs is to be introduced which will be similar to the current system of 1996 EPOAs. However there are fundamental differences including the execution and registration process containing more safeguards, regular reporting and accounting obligations of attorneys to the Director and a complaints procedures to the Director with powers of investigation.
The Assisted Decision Making (Capacity) Act 2015, once commenced, will bring in:-
- A new test for capacity
- Decision making support structures
- Decision making representatives
- An end to wardship
- A new regime for enduring powers of attorney.