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

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

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

Assessing Capacity The status approach The outcome approach The functional approach

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

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

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.”

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.”

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.

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

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

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

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

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

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

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.

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)

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

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

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

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

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

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

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

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

Thank you.