1. Assisted Decision Making
Sarah Lennon Inclusion Ireland

2. Overview The current situation in Ireland Context for Change
Typical Case Studies
The Future

3. Currently in Ireland Status Approach to Capacity
Decision that someone ‘lacks capacity’
Simply possessing or not possessing particular characteristics
Typically ‘all or nothing’
No regard to actual capabilities to make particular decisions

4. Ward of Court Irish system – Ward of Court 1871 Lunacy Regulation Act
Person who is made a Ward of Court is deemed ‘lunatic’ ‘idiot’ ‘unsound mind’
Typically as a result of finances
Protection
Broad restrictions

6. Ward of Court Medical Model
When considering whether or not a person should be taken into Wardship, the Court must be satisfied that the person is, on the basis of the medical evidence available, mentally incapacitated and incapable of managing his or her affairs – Court Service Guide

7. Ward of Court
Financial affairs – including bank accounts, taxation, bills, property
Consent to medical treatment (approval)
Wills (only with permission)
Marriage (not permitted)
Travel abroad (only with permission)
Legal proceedings (with permission)
Wards can be sued or prosecutred

8. Change
Change began in 2003 with Law Reform Commission consultation on ‘Law & The Elderly’
Relevance to other persons
2005, Consultation Paper on ‘Vulnerable Adults & the Law’
2006, Report on ‘Vulnerable Adults & the Law’

9. Change
, UN Convention on the Rights of Persons with Disabilities (UNCRPD)
Mental Capacity and Guardianship Bill 2007 (Seanad)
Scheme of Mental Capacity Bill 2008
Assisted Decision-Making (Capacity) Bill 2013

10. Functional Approach Issue Specific Time Specific
Based on ability to understand the nature and consequences of a decision to be made in the context of the available choices at the time the decision is made

11. Defining Capacity
Australian State of Victoria, capacity is defined in terms of lack of capacity – Substitute Approach
In the Canadian province of Saskatchewan, capacity is defined as the ability to understand information relevant to making a decision and to appreciate the reasonably foreseeable consequences of making or not making a decision.

12. UNCRPD Article 12 Equal Recognition
Legal Capacity on an equal basis with others in all aspects of life

13. Legal Vs Mental Capacity
Mental capacity is closely aligned with intelligence
Legal capacity is the ability to make decisions and have such decisions respected in all areas of life 
Presumption that everyone has legal capacity

15. The Assisted Decision Making Bill
For people over 18
It is still a Bill –may be changes
Doesn’t apply to voting, marriage, membership of a jury, mental health treatment and consent to sexual relationships
Many parts of the law are still unclear and will need a Code of Practice to explain them

16. Definition of Capacity
Can You?
Understand the relevant information (given in a way that is accessible to you)
Remember the information
Use the information towards making a decision
Communicate your decision (not only verbally)
Applies to EVERYONE – not just people with a disability or diagnosis

17. Principles Presumption of capacity (not the other way around)
Information used must be accessible to that person
‘unwise’ decision does not equal lack of capacity
Any Intervention must be necessary and least restrictive of your freedom, rights and dignity
Individual must participate in intervention
Will and preferences (as far as practicable)
Talk to others who know the person well

18. Exclusions
Marriage / civil partnership / separation/dissolution and divorce
Adoption or guardianship of a child
sexual relations
voting at an election or at a referendum
serving as a member of a jury.

19. Office of Public Guardian
Raise awareness about UN Convention & Act
Supervise assistants, co decision-makers, representatives and attorneys
Appoint panels of representatives, court friends, special and general visitors
Keep a register of agreements, read reports
Deal with complaints and start investigations
Give advice to the court making a decision

20. How will Decisions be Made?
by the person autonomously
By the person with assistance
Informally by another person
By the person with a co-decision maker
By another person (representative or attorney)
By the High Court for certain decisions
Outside of the Court System
Through the Court System

21. Assistance Applies to persons aged over 18
The law says you must think your capacity is ‘in question or shortly may be in question’ for the agreement to be used
Assistance for personal welfare or property and affairs, or both

22. Assistance Agreements
There will be a form to fill in called the ‘agreement’
The ‘appointer’ is the person who chooses the ‘assistant’
There can be more than one assistant but not more than one per decision to be made
If someone else challenges your decision you can show them your agreement

23. Function of the Assistant
Advises about the decision
Gets the ‘will & preferences’ of the appointer
Helps to communicate the decision and makes sure the person’s wishes are followed
Can access relevant information needed for the decision
Does NOT make the decision

24. Informal Decision-Making
Allows someone to make an ‘everyday’ decision for someone else who they believe lacks capacity
Must comply with general principles
Only for personal welfare decisions
Paid for expenses from your money
Restraint safeguards also apply to them.

25. Informal Decision-Making
Still liable for criminal or civil negligence
Must not make a decision that goes against assistant, co decision, or representative
Can’t make a decision that only the High Court can make
Restraint safeguards also apply to them.

26. Informal Decision-Making
Still liable for criminal or civil negligence
Must not make a decision that goes against assistant, co decision, or representative
Can’t make a decision that only the High Court can make
Restraint safeguards also apply to them.

27. Co-Decision Making Over 18 and capacity in question or more be shortly
May be appointed by the person themselves or by court
Person cannot have a co-decision maker appointed against their will
The individual and co-decision maker make the decision together
Restraint safeguards also apply to them.

28. Role of the Co-Decision Maker
Make any decision (specified) together with the individual
Advise the individual
Ascertain the ‘will and preferences’ of the person
Assist the person to communicate their decision
Access relevant personal information

29. Role of the Co-Decision Maker
Must prepare an annual report for the public guardian
Can receive expenses

30. Co-Decision Making
A co-decision maker must comply with the decision made by the individual appointer unless
It is not ‘reasonable’
It is harmful to themselves or others

31. Who can be a co-decision maker?
a relative or friend of the who has had such personal contact, over such period of time that a relationship of trust exists between them

32. Who cannot be a Co-decision Maker?
Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person resides

33. Powers of Attorney
You make a ‘power of attorney’ once you are over 18. It is an agreement that someone you choose will make decision(s) for you once you consider that your capacity is or shortly may be in question.
This replaces the Enduring Powers of Attorney Act If you appointed an attorney under the old law, it still applies. Otherwise, this new law applies.

34. Decision-Making Representatives
Substitute Decision making – close to a guardianship model
Appointed by Court, on foot of an order or otherwise
Court decides that a co-decision maker is not appropriate or not available

35. Who can be a Decision – Making Representative?
Can be more than one person per decision
Suitable and understanding of the responsibility
Over 18 years old
The Public Guardian will maintain a panel of suitable persons willing and able to act as decision-making representatives

36. Who cannot be a Decision Making Representative?
Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person resides

37. Wards of Court
Everyone who was a ward before the Act will be reviewed within 3 years but can apply to court for review as soon as the Act is passed
Everyone who was a ward will be discharged eventually, and a different order will be made (e.g. co decision-making or representative) but the court will decide when this will happen and will base this on the person’s capacity

38. Case Studies
Mike has an intellectual disability, his mother dies without a will and he and his sister Anne inherit equally. Anne wishes to sell the property but there is concern that Mike lacks Capacity to consent.
Today – Mike could be made a Ward of Court
Post Act – Mike could have a co-decision maker or personal representative

39. Case Studies
Jack has an acquired brain injury following injury at birth. He receives a large sum of money in damages for his future care.
Today – Court holds money pending application for wardship
Post Act – Court could appoint a co-decision maker or personal representative and review

40. Case Studies
Barry has an intellectual disability. His doctor has prescribed him medicine for high blood pressure. He is confused as to when he is to take the medication and wants some support.
Today – Only Barry can give consent. Often a service provider or family member will ‘manage’ the medication
Post Act – Barry can have an ‘assistant’ of his choosing to support him

41. Thank You
Q&A