1. The Assisted Decision-Making (Capacity) Act 2015
A guide by
Kate Butler BL

2. Capacity – a definition?
No single, generally applicable definition at common law or statute
Legal standing – ability to hold rights and duties
Legal agency – exercise of those rights and duties

3. Capacity - principles
Presumption of capacity unless contrary is proved
Onus of proving a lack rests on the person asserting this

4. Assessing Capacity The status approach The outcome approach
The functional approach

5. The functional approach
Capacity to perform a particular function at a particular time
Issue specific, context and time specific
E.g. capacity to give valid consent to marriage
E.g. testamentary capacity

6. Irish law – status approach
Wards of Court
Involuntary admittance under MHA 2001
Designation of incapacity = lose freedom to make decisions

7. Medical or legal test? Baker J, In Re SCR [2015] IEHC 308
“Thus I regard the question to be determined to be whether, on the balance of probabilities and taking the evidence as a whole, the donor had sufficient cognitive capacity as a matter of fact to understand the nature and effect of the instrument he actually purported to execute. The test is a legal test.”

8. 2015 Act – s.3
“…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 that time.”

9. S 3 continued s.3(2) – How a lack of capacity is to be defined:
A person lacks capacity to make a decision if he or she is unable to understand the information relevant to the decision; to retain that information; to use or weigh that information; or to communicate his or her decision.

10. S.3 continued Assessing - What may or may not be considered
E.g. How the information is delivered
E.g. Ability to retain the information
E.g. Lacking capacity at a particular time
E.g. Lacking capacity in a particular matter

11. Guiding principles Presumption of capacity
Support / assistance / information / access to same
Allowed to make ‘unwise’ decision
Intervention must be necessary and least restrictive of freedom, rights and dignity
Person must participate in intervention
Will and preference must be considered
Consult those close to the person
Consider recovery / urgency

12. What’s in the Bill? Guiding Principles
Assisted Decision-Making Agreements
Co-Decision-Making Agreements
Decision-Making Representatives
Powers of Attorney
Advance Healthcare Directives

13. What’s in the Bill cont. Wards of Court
Director of Decision Support Service
Detention
Convention on International Protection of Adults
Offences
Repeal – Lunacy Act / Marriage of Lunatics Act

14. What’s NOT in the Bill Does not change the law of capacity:
Marriage / Civil partnership
Separation / Divorce
Adoption
Guardianship
Sexual relations
Voting
Jury service
Wills

15. Who is the Bill for? RELEVANT PERSON (s.2(1))
A person whose capacity is being called into question or may shortly be called into question in respect of one of more than one matter, and includes such a person who is
An appointer or
The donor of an enduring power of attorney
A person who lacks capacity in respect of one or more than one matter
A person who falls within both of above categories at the same time but in respect of different matters

16. Declarations by the court
 s. 37 – Declarations as to capacity. On application, the court may make two types of declaration:
a. It may declare that the RP lacks capacity to make one or more than one decision unless the RP has the assistance of a co-decision-maker;
Or b. It may declare that the RP lacks capacity to make one or more than one decision even with the assistance of a co-decision-maker.

17. Support tools Hierarchy of support roles
The more assistance required, the more intervention
Decision-making assistant (personal welfare and financial)
Co-decision maker (personal welfare and financial)
Decision-making representative (personal welfare and financial)
Power of attorney (personal welfare and financial)

18. Who is making the decisions?
ADM
CDM
DMR
EPA
Relevant person
Relevant person + CDM
DMR/Court
Attorney

19. Decision-making-representative
Court order arises in two situations:
Declaration that RP lacks capacity unless has assistance AND
No suitable person to be CDM
Declaration that RP lacks capacity even with assistance

20. Decision-making-representative
Suitable person OR from panel created by Director
Eligibility & Disqualification criteria
Acts as an agent for the RP
May restrain to protect and if proportionate
Must have approval of court in settlement of property / exercising of powers vested in RP
Must report to Director every 12 months

21. Role of Circuit Court Circuit Court Exclusive jurisdiction
Makes declarations as to capacity
Appoints DMR
Makes decisions in urgent situations

22. Role of High Court High Court Withdrawal of life-sustaining treatment
Donation of an organ
Wards of Court
AHD – pregnancy
Detention matters
International Protection of Adults

23. Applications to the Circuit Court
In camera
No minors
Consent required from court (ex parte) unless a spouse, Director etc.
Can direct Director to appoint a court friend
May make interim orders before declaration

24. Review of declarations
RP, Spouse, Director etc. may apply for review
Court shall review within 12 months (3 years if RP unlikely to recover)
May revoke or amend or affirm declaration
May vary or discharge DMR orders
If declaration in relation to decisions which are no longer relevant, then no review

25. Expert reports and costs
Court may direct for the provision of reports
No provision in relation to costs of same
Legal aid for any party – usual criteria (likely success, reasonable) don’t apply
CLAB may seek to recover costs

26. Thank you.