Capacity Act, 2015

[full title: Assisted Decision Making (Capacity) Act 2015]

The Assisted Decision Making (Capacity) Act was enacted in December 2015, although the Government has yet to issue a Commencement Order to bring it into effect. Its purpose is to make legally binding agreements to be assisted and supported in making decisions about a person’s welfare & their property & affairs.

The focus is on Capacity (or rather, the presumption of capacity) – “THE ABILITY TO UNDERSTAND, AT THE TIME THE DECISION IS BEING MADE, THE NATURE AND CONSEQUENCES OF THE DECISION IN THE CONTEXT OF THE AVAILABLE CHOICES”

The Act sets out a functional test:

A person lacks the capacity to make a decision if they are unable:

• To understand the information relevant to the decision
• To retain that information long enough to make a voluntary choice
• To use or weigh that information as part of the process of making the decision, or
• To communicate their decision

However, a person should not be said to lack capacity if they:

• Require information to be explained to them in a way that is appropriate to their circumstances
• Can only retain the relevant information for a short period of time
• Did lack capacity for a particular decision at one time but may no longer lack capacity to make that decision
• Lack capacity for some decisions but have capacity to make decisions on other matters

What’s new?

There are various new arrangements to be brought into force when the Act commences:

1. Assisted Decision Making

A Decision-Making Assistant to assist a person to access information, or to understand;

Appointment is by way of a formal Decision Making Assistance Agreement;

2. Co-Decision Making

Appoint someone to jointly make with the person some decisions about their welfare & property & affairs. To assist the person to obtain all necessary information, and to explain the nature of any decisions & discuss outcomes & possible alternatives;

Notice to be given to spouse & family;

Annual review;

3. Decision Making Representative

Court appointed (similar to a Ward of Court);

4. Changes to an Enduring Power of Attorney (EPOA)

More people are to be notified (spouse, co-habitant, any children, any DM Assistant or Co-DM);

Supervision of the Attorney;

Now registered with the Director of the Decision Support Service*; and

5. Advance Healthcare Directives – LIVING WILLS

“An advance expression made by a person with capacity which contains their will and preferences concerning medical treatment decisions which may arise if the person were to subsequently lack capacity or be unable to express their preference, for example, while in a coma.”

*Duties of the new Decision Support Service:

• Promote public awareness of this Act and matters relating to the exercise of their capacity by people who need or may shortly need assistance in exercising their capacity;
• Promote public confidence in the process of dealing with matters which affect people who need or may shortly need assistance in exercising their capacity;
• Provide information to people in relation to their options under the Act for exercising their capacity;
• Provide information to, and supervise in accordance with the Act, Decision-Making Assistants, Co-Decision-Makers, Decision-Making Representatives, Designated Healthcare Representatives and Attorneys in relation to the performance of their functions;
• Identify and make recommendations for change of practices in organisations and bodies in which the practices may prevent a relevant person from exercising their capacity under the Act;
• Establish a means by which to disseminate information to members of the public relevant to the performance of the Director’s functions and which will assist members of the public to understand the operation of the Act and the Director’s role; and
• Make recommendations to the Minister on any matter relating to the operation of the Act.

If you have any queries about the new Capacity Act, please contact Susan for more information.