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:
However, a person should not be said to lack capacity if they:
What’s new?
There are various new arrangements to be brought into force when the Act commences:
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;
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;
Court appointed (similar to a Ward of Court);
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
“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:
If you have any queries about the new Capacity Act, please contact Susan for more information.