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Proposed changes in the law on legal capacity

Talk for National Service Users Advocacy Conference, Brothers of Charity, Fota, Cork, October 2015

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Proposed changes in the law on legal capacity

  1. 1. Proposed changes in the law on legal capacity Darius Whelan, School of Law, UCC Brothers of Charity conference, 22 Oct. 2015
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  3. 3. 3 Assisted Decision-Making (Capacity) Bill 2013
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  6. 6. Capacity means decision-making capacity Personal welfare or financial issues Operate bank account, spend money, decide where to live, make medical decision Capacity means capacity at time decision is made You lack capacity if you are unable to Understand info relevant to decision Retain that information Use/ weigh that information, or Communicate your decision, perhaps with assistive technology 6
  7. 7. It is presumed you have capacity All practicable steps must be taken to help you to make decision Making an unwise decision does not make you unable to make decision Intervener must give effect to your will and preferences [Example of intervener – person helping you to make a decision] Guiding Principles (examples) 7 [“Best interests” will no longer apply]
  8. 8. • You can appoint a Decision-Making Assistant (DMA) to assist you in making decisions You must be over 18 You can have two DMAs • You must consider your capacity is in question or may shortly be in question • DMA can assist you in obtaining information; explain information; find out your will and preferences; ensure your decisions are implemented • Notify office of Director of Decision Support Service Decision- making assistant (DMA) 8Photo by Joshua Earle from Unsplash CC0
  9. 9. You can appoint a Co-Decision Maker (CDM) to jointly make decisions with you You must be over 18 CDM must be trusted relative/ friend Circuit Court approves the co-decision- making agreement Co-Decision Maker (CDM) 9 Picture –
  10. 10. Circuit Court appoints DMR for person Person lacks capacity to make decisions, even with CDM DMR may make decisions This is substitute decision-making Supervised by office of Decision Support Service 10 Decision- Making Representative (DMR)
  11. 11. Bill is not yet law. Once passed, more detailed guidance and training will be necessary. 11