Navigating Capacity Applications

The Assisted Decision-Making (Capacity) Act 2015 was a major change in how Irish law deals with people where their capacity to make decisions about their personal welfare, property, and financial affairs has been impacted in some way. Ten years after the Act was passed by the Oireachtas, and two years after its operation commenced, it is now clear how the application processes work. However, there are significant teething problems and great confusion amongst the public about the complex new system.

Understanding the Tiers of Support

The 2015 Act introduces a tiered framework for decision support, proportionate to the individual’s needs:

1. Decision-Making Assistance Agreements: For those who need some support to understand, retain, or communicate decisions. A Decision-Making Assistant helps the person access information and communicate their decisions.
2. Co-Decision-Making Agreements: For individuals who wish to make certain decisions jointly with a trusted person. Both the person and their Co-Decision-Maker must agree on the decision.
3. Decision-Making Representative (DMR) Orders: In situations where a person lacks capacity even with the support of a co-decision-maker, the Circuit Court can appoint a Decision-Making Representative to make decisions on their behalf, always striving to give effect to the person’s will and preferences. This is the most restrictive intervention and is only to be pursued as a last resort.

These support options are supervised by the Decision Support Service (DSS), a branch of the Mental Health Commission established to regulate and supervise arrangements made under the Act.

Enduring Powers of Attorney

A significant source of confusion that we have experienced when assisting clients is with Enduring Powers of Attorney, which are often confused and conflated with the decision-making orders available under the Act.

An EPA is a proactive arrangement made by a person while they have capacity, allowing trusted individuals to act for them if they lose capacity in the future. It is subject to registration and oversight by the DSS. By contrast, a decision-making order is made by a Court where the person has already lost capacity.

EPAs differ from ordinary Powers of Attorney, often used for example to enable someone to assist with managing legal or financial matters and which is effective only while the person who made it has mental capacity. An ordinary power can be general or limited to specific tasks (e.g. managing a bank account) and can be revoked by the donor at any time.

The Act made changes made to the law on EPAs and as the changes are implemented by the DSS they have, in the view of many solicitors, had the effect of making them more cumbersome for many people to set up. In addition, the role of solicitors has been significantly side-lined by new systems making it generally impractical for solicitors to assist in their creation.

What This Means for Families

EPAs are a sensible option for people preparing for a future in which they may lose capacity and require assistance, and wish to determine the scope of that assistance to some extent in advance. Where someone’s capacity has already been diminished, however, an application may be needed under the Act. For such applications it is vital to:

• Understand the Guiding Principles: An application must align with the Act’s emphasis on autonomy, least restrictive intervention, and respect for the person’s will and preferences.
• Gather Relevant Information: Evidence is required of the person’s capacity (or lack thereof) in relation to specific decisions, supported by reports from medical or other healthcare professionals.
• Consider the Least Restrictive Option: All tiers of support must be explored before seeking a more intrusive intervention like a Decision-Making Representative Order.
• Seek Legal Advice: The complexities of the Act necessitate expert legal guidance. A solicitor can help you navigate the process, ensure your application is properly prepared, and represent your interests before the Decision Support Service or the courts.

A Person-Centred Approach

At its heart, the Act champions the autonomy and dignity of the individual. Key considerations for any application are rooted in these guiding principles:

• Presumption of Capacity: Every adult is presumed to have decision-making capacity unless proven otherwise. This is a fundamental departure from the old “wards of court” system.
• Functional Test of Capacity: Capacity is not an “all or nothing” concept. It is assessed on a decision-specific and time-specific basis. This means a person might have capacity for some decisions but not others, and their capacity can fluctuate. The assessment considers whether the person can:
  • Understand the information relevant to the decision.
  • Retain that information long enough to make a voluntary choice.
  • Use or weigh up that information as part of the decision-making process.
  • Communicate their decision by whatever means.
• Support in Decision-Making: The Act prioritises providing support to enable individuals to make their own decisions wherever possible. Intervention should only occur when necessary and be the least restrictive of a person’s rights and freedoms.
• Respect for Will and Preferences: The Act strongly emphasises giving effect to the person’s own will and preferences, even if others might perceive their decisions as unwise. This is a significant move away from the “best interests” principle of the old system.

Experience of the system

While widely welcomed as a progressive piece of legislation, the implementation of the Act has not been without its challenges.

• Complexity and Implementation Challenges: The Act is a complex piece of legislation, and its full implementation has required significant cultural and procedural shifts for legal professionals, healthcare providers, and families. Concerns have been raised about the practicalities of navigating the new system.
• Defining “Will and Preference” and Safeguards: While the shift to “will and preference” is quite appropriate, practical difficulties can arise in discerning and giving effect to a person’s will and preferences, especially where communication is challenging or the person’s views have changed over time. Concerns have also been raised about ensuring adequate safeguards to prevent abuse or undue influence within the new framework. Seeking to ascertain the Will and Preference of the person involved is one of the most commons causes of delay in obtaining DMR orders.
• Court Decisions on Family Appointments: Recent court decisions have highlighted that family members are not automatically appointed as Decision-Making Representatives. The courts will carefully consider the suitability of applicants, prioritising objectivity and the absence of conflicts of interest, even where family members are devoted to the person. This has sometimes led to disappointment for families who believe they are best placed to act.