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Darius Whelan,
School of Law,
UCC
Legal Capacity -
LW6616
• Current Law
– Wards of Court
– Enduring Powers of Attorney
(EPAs)
• Progress towards Reform
• New Act:
– Assisted Decisi...
Mary Donnelly, ‘The Assisted Decision-
Making (Capacity) Act 2015: implications
for healthcare decision-making’ (2016)
22 ...
4
Wards of
Court
• Lunacy Regulation (Ireland) Act 1871
• Person is “of unsound mind” and incapable of
managing his/her pe...
– Powers of Attorney Act 1996
– A Power of Attorney appoints a person, called the donee or attorney,
and invests him/her w...
6
• Once the EPA is registered, the attorney may
have power over the donor’s property,
financial and business affairs and ...
Law Reform Commission:
• Consultation Paper on Law and the
Elderly (2003)
• Consultation Paper on Vulnerable Adults
and th...
8
Assisted Decision-Making
(Capacity) Act 2015
Capacity means decision-making capacity
Personal welfare or financial issues
Operate bank account, spend money,
decide whe...
• Presumption of capacity unless
contrary shown
• All practicable steps must be taken to
help person to make decision
• Ma...
Intervener shall
• give effect to person’s past and present will and
preferences
• take into account person’s beliefs and ...
• Person may appoint a DMA to assist
them in making decisions re
personal welfare or property and
affairs or both
• Person...
• Person appoints CDM to jointly make
decisions with them
• CDM must be trusted relative/ friend
• Circuit Court approves ...
0 Circuit Court appoints DMR for person
0 Person lacks capacity to make decisions, even with CDM
0 DMR may make decisions
...
0 Extends EPAs to deal with healthcare decisions –
giving or refusing treatment, other than refusing life-
sustaining trea...
0 Advance Healthcare Directives
0 An advance expression made by the person of his/her
will and preferences concerning trea...
Commentary on Bill:
0 Blog Posts by Lucy Series; Eilionóir Flynn; Darius
Whelan; Mary Donnelly
17
0 No explicit reference to "best interests" - a major
advance on the 2008 Heads of the Bill.
0 The "best interests" princi...
0 It is a real pity that the Bill does not establish
multidisciplinary tribunals for dealing with
applications regarding l...
0 The Bill creates forms of substitute decision-making,
most clearly with the court appointment of a
Decision-Making Repre...
0 The Bill does not provide for automatic legal
representation in any category of case. Instead, the
person will need to a...
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Legal Capacity

The Assisted Decision-Making (Capacity) Act 2015 in Ireland

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Legal Capacity

  1. 1. Darius Whelan, School of Law, UCC Legal Capacity - LW6616
  2. 2. • Current Law – Wards of Court – Enduring Powers of Attorney (EPAs) • Progress towards Reform • New Act: – Assisted Decision-Making (Capacity) Act 2015 – Commentary on Act 2 Summary
  3. 3. Mary Donnelly, ‘The Assisted Decision- Making (Capacity) Act 2015: implications for healthcare decision-making’ (2016) 22 Medico-Legal Journal of Ireland 65 (Westlaw IE). 3 Key Reading
  4. 4. 4 Wards of Court • Lunacy Regulation (Ireland) Act 1871 • Person is “of unsound mind” and incapable of managing his/her person or property • Powers exercised by President of High Court and Registrar of Wards of Court • Procedures not robust; paternalistic legislation • A “Committee” is appointed for the ward – E.g. person’s spouse or a solicitor • Committee deals with property of ward on ward’s behalf • Status approach to capacity • The ward may not buy property, sell property, travel abroad or marry • But they may make a will assuming that the common law requirements for capacity are satisfied • No automatic reviews
  5. 5. – Powers of Attorney Act 1996 – A Power of Attorney appoints a person, called the donee or attorney, and invests him/her with power to act either generally or in a manner specified on behalf of the donor who gives the power – The EPA allows power to continue after donor loses his/her mental capacity and contains statement that donor intends power to be effective during subsequent mental incapacity of donor – When EPA is executed, it has no real legal effect. It will only come into effect when it is registered – Application to register may only be made when attorney has reason to believe that donor is or is becoming mentally incapacitated 5 5
  6. 6. 6 • Once the EPA is registered, the attorney may have power over the donor’s property, financial and business affairs and personal care decisions • In Personal care decisions which involve where the donor should live, donor’s diet and dress, social welfare benefits, etc. the attorney must make decisions in the best interests of the donor. • The personal care decisions do not currently extend to decisions on medical treatment or surgery (but see 2015 Act – not yet commenced - below)
  7. 7. Law Reform Commission: • Consultation Paper on Law and the Elderly (2003) • Consultation Paper on Vulnerable Adults and the Law: Capacity (2005) • Report on Vulnerable Adults and the Law (2005) Department of Justice: • Scheme of Mental Capacity Bill 2008 • Assisted Decision-Making (Capacity) Act 2015 - not yet commenced Progress towards reform 7
  8. 8. 8 Assisted Decision-Making (Capacity) Act 2015
  9. 9. Capacity means decision-making capacity Personal welfare or financial issues Operate bank account, spend money, decide where to live, make medical decision Capacity is to be construed functionally – ability to understand nature and consequences of decision at time decision is made Person lacks capacity if unable to • Understand info relevant to decision • Retain that information • Use/ weigh that information • Communicate his/her decision, perhaps with assistance or through a third party Act recognises that sometimes person may only be able to retain info for short period only 9
  10. 10. • Presumption of capacity unless contrary shown • All practicable steps must be taken to help person to make decision • Making an unwise decision does not make person unable to make decision • Interventions should only be made where necessary • Interventions must minimise restrictions and respect dignity, bodily integrity, privacy and autonomy • Intervener (e.g. person helping with decision) shall facilitate person to participate … Cont’d > Guiding Principles 10
  11. 11. Intervener shall • give effect to person’s past and present will and preferences • take into account person’s beliefs and values • consider views of any person named by person • consider views of decision-making assistant, co- decision-maker, decision-making rep. or attorney Intervener may consider views of carers; people with bona fide interest in person’s welfare; healthcare professionals 11
  12. 12. • Person may appoint a DMA to assist them in making decisions re personal welfare or property and affairs or both • Person must consider their capacity is in question or may shortly be in question • DMA can assist person in obtaining info; explain info; ascertain will and preferences of appointer; ensure appointer’s decisions are implemented • Notify office of Director of Decision Support Service Decision- making assistant (DMA) 12Photo by Joshua Earle from Unsplash CC0
  13. 13. • Person appoints CDM to jointly make decisions with them • CDM must be trusted relative/ friend • Circuit Court approves the co-decision- making agreement Co-Decision Maker (CDM) 13 Picture – CourtsService.ie
  14. 14. 0 Circuit Court appoints DMR for person 0 Person lacks capacity to make decisions, even with CDM 0 DMR may make decisions 0 This is substitute decision-making 0 Supervised by office of Decision Support Service 14
  15. 15. 0 Extends EPAs to deal with healthcare decisions – giving or refusing treatment, other than refusing life- sustaining treatment 0 Attorneys will apply to office of Decision Support Service for registration of EPA 0 Annual reports to DSS 15
  16. 16. 0 Advance Healthcare Directives 0 An advance expression made by the person of his/her will and preferences concerning treatment decisions that may if he/she subsequently lacks capacity 0 Must be signed and witnessed 0 Also signed by designated healthcare representative, if one is named 0[e.g. friend or relative] 0 AHD shall be complied with unless at the time it is proposed to treat maker of AHD he/she is involuntarily detained under Mental Health Act 2001 0 General law on assisted suicide still applies 16
  17. 17. Commentary on Bill: 0 Blog Posts by Lucy Series; Eilionóir Flynn; Darius Whelan; Mary Donnelly 17
  18. 18. 0 No explicit reference to "best interests" - a major advance on the 2008 Heads of the Bill. 0 The "best interests" principle has been interpreted in such a paternalistic manner by the Irish courts that it would have been unworkable in the Capacity Bill. What's more, it's out of step with modern thinking on the Convention on the Rights of Persons with Disabilities (CRPD). 0 The CRPD is explicitly recognised in the functions of the DSS. 18
  19. 19. 0 It is a real pity that the Bill does not establish multidisciplinary tribunals for dealing with applications regarding lack of capacity, etc. A three- person tribunal similar to the Mental Health Tribunals would be a more suitable forum than the Circuit Court for resolution of these issues. 0 The Bill does not fully resolve the issue of people who lack capacity and are admitted to a residential centre on a "voluntary" basis but are de facto detained in the centre. 19
  20. 20. 0 The Bill creates forms of substitute decision-making, most clearly with the court appointment of a Decision-Making Representative (ss.23-27). Because of Article 12 of the CRPD (which Ireland has not yet ratified), regimes of substitute decision-making should be avoided as much as possible and this Bill may not go far enough to comply properly with the CRPD (for more detailed critique on this aspect see blog posts by Eilionóir Flynn and Lucy Series). 20
  21. 21. 0 The Bill does not provide for automatic legal representation in any category of case. Instead, the person will need to apply for legal aid through the civil legal aid legislation. This contrasts sharply with the automatic representation under the Mental Health Act 2001. 21

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