On 26 April 2023, the Assisted Decision-Making (Capacity) Act 2015 (the ‘Act’) commenced. (See here a link to previous PILA Bulletin article, The Assisted Decision-Making (Capacity) Act 2015 and NGOs by Ciara Dowd BL) The Act replaces the wards of court system with a new, progressive, rights based system of assisted decision-making. This commencement has enabled the abolition of wardship, the operationalisation of the Decision Support Service, and the introduction of a new system of tiered decision-making supports.
The Act represents a more modern understanding of mental capacity and gives recognition to the fundamental importance of legal capacity and self-determination as human rights.
In summary, once commenced, the 2015 Act will abolish the concept of wardship and introduce three types of support arrangements for people who currently, or may shortly, face challenges when making certain decisions (“relevant persons”). It also provides for people who wish to plan ahead for a time in the future when they might lose capacity, by way of an advance healthcare directive, or enduring power of attorney.
The Act provides for the establishment of the Decision Support Service (DSS). The DSS is the service established by the Act to regulate and register decision support arrangements, supervise the actions of decision supporters and investigate complaints made against them under the Act. The DSS will also assist adults who may require help, now or in the future, to exercise their right to make decisions about personal welfare, property or their affairs.
Up to 220,000 Irish people who currently have difficulties with decision-making will be supported by the new service. This includes adults with an intellectual disability, a mental illness, an acquired brain injury, or those with neurodegenerative conditions such as dementia. As anyone could face challenges with decision-making in their future lives, the Act also provides new tools for any adult who wishes to plan ahead by way of an advance healthcare directive, or a revised form of an enduring power of attorney. The DSS can also support people to plan for the future by utilising these tools.
A key reform under the Act is the abolition of the wards of court system for adults under the Lunacy Regulation (Ireland) Act of 1871 and the discharge of adults from wardship within three years.Last weel, the High Court also published Practice Direction HC120 relating to discharge from wardship applications. The Practice Direction sets out the procedure to be followed and the papers to be lodged / filed in order to make an application to discharge someone from wardship. The Practice Direction can be accessed here.