The Assisted Decision Making (Capacity) Act 2015 was enacted in December 2015 and will commence in October 2022 (rather than 20 June). It reforms outdated nineteenth century legislation based on the Lunacy Regulations (Ireland) Act 1871 and takes account of the principles contained in the UN Convention on the Rights of Persons with Disabilities which Ireland ratified in 2018.
The changes introduced by the legislation are fundamental and far-reaching. The Act applies to a myriad of practice areas ranging from Banking Law and Share Purchase Agreements to Probate, Conveyancing and Healthcare.
The legislation replaces the outmoded Wards of Court system with a modern human rights supported decision-making framework, updates the Powers of Attorney Act, 1996 to include health care decisions and introduces a statutory framework for Advance Healthcare Directives. The legislation puts the presumption of capacity on a statutory basis. It moves away from the existing substituted decision-making regime to provide for supported decision making which must take account of the “will and preferences” of the person whose decision-making capacity may be in question. The range of supports for those that need assistance, will take the form of a number of different intervention options. The type of intervention will depend on the level of support that the person needs to assist them to make a decision.
This series of seminars aims to provide practitioners with a comprehensive overview of the following:
- Lecture One on 30th June:The Framework of the Legislation, the Guiding Principles; the Functional Approach to the Assessment of Capacity: What This Means in Practice
- Chaired by Judge O'Connor. Speakers: Patricia Hickey, General Solicitor for Minors and Wards of Court and Mary Condell, Legal Advisor with Sage
- Lecture Two on 7th July: Enduring Powers of Attorney: The New Regime; Advance Healthcare Directives
- Chaired by Judge O'Connor. Speaker: Patricia Rickard-Clarke, Solicitor
- Complimentary Lecture Three on 14th July: Decision Support Options: The New Support Framework of “Decision Supporters”.
- Chaired by Patricia Rickard-Clarke. Speaker: Áine Flynn, Director, Decision Support Service
Each 2 hour lecture will take account of the amendments to the principle act being introduced by the Assisted Decision Making (Capacity)(Amendment) Bill 2021. Read more about each lecture in the drop down sections below.
Book the series for only €199.
Lecture 3 is complimentary and is being offered to all registered delegates.
Dates & times:
- Lecture One on 30th June from 4pm to 6pm
- Lecture Two on 7th July from 4pm to 6pm
- Lecture Three on 14th July from 9.30am to 11.30am
Lecture 1: The Framework of the Legislation, the Guiding Principles; the Functional Approach to the Assessment of Capacity: What This Means in Practice
- The framework of the Assisted Decision Making (Capacity) Act 2015: an overview
- The obligation to comply with the provisions of the UN Convention on the Rights of Persons with Disabilities and the Guiding Principles set out in the 2015 Act.
- The functional assessment of capacity: what this means and the implications for practitioners in day-to-day transactions
- What happens if a person’s capacity fluctuates?
- Does mental illness deprive a person of capacity? Is an unwise decision legally valid?
- What is the position if a person can make some decisions but not others?
- The practicalities of the statutory duty to support decision making
Lecture 2a: Enduring Powers of Attorney: The New Regime
- What are the differences between EPA’s created under the 1996 Act and those created under the 2015 Act?
- Does the scope of an attorney’s authority include healthcare decisions?
- Should the ability of the donor to participate be ascertained after the EPA comes into effect?
- Execution and registration of EPA’s: the increased safeguards
- The role of the Director of the Decision Support Service in registering the EPA and ongoing supervision
- What action must be taken by the Director if one of the notice parties objects to the registration of the EPA?
- Is there any appeal mechanism if the Director refuses to register the EPA?
- Can a decision be taken prior to the EPA coming into effect?
- Reporting and accounting obligations
- Provisions in relation to revocation, variation and disclaimer
- The implications of the legislation for EPA’s created under the 1996 Act
- What complaints mechanism exists and is it possible to remove an attorney under an EPA created pursuant to the 1996 Act?
- Implications of the Hague Convention due to be ratified on 20 June
Lecture 2b: Advance Healthcare Directives
- The nature and purpose of Advance Healthcare Directives
- Does an Advance Healthcare Directive apply to basic care?
- The distinction between a treatment refusal and a treatment request
- Is an unwise treatment refusal binding?
- What is the position in relation to one which is not based on sound medical principles or may result in death?
- In what circumstances is a refusal of life sustaining treatment binding?
- Is a treatment request binding?
- Is a healthcare professional required to take such a request into account in any decision-making process which relates to the treatment?
- Must the healthcare professional record his/her decisions for not complying with it and provide a copy of the reasons to the Designated Healthcare Representative?
- The role of the Designated Healthcare Representative
- Does an Advance Healthcare Directive apply in a situation where the person who has made it is involuntarily detained under the Mental Health Acts?
- Specific provisions which apply where the maker of the Directive is pregnant
- What steps should be taken to address any ambiguity in an Advance Healthcare Directive?
- Can a healthcare professional be held liable if he/she fails to comply with the Advance Healthcare Directive?
- The role of the Circuit Court and the High Court
- Oversight of the Designated Healthcare Representative by Director of Decision Support Service
Lecture 3: Decision Support Options: The New Support Framework of “Decision Supporters”
- The Decision-Making Assistance Agreement: Who is deemed to make the decision?
- Can the appointer have more than one decision making assistant?
- The obligation to ascertain the will and preferences of the appointer on the matter and to express them
- Notices: the requirement to notify the director of the Decision Support Service of the agreement
- Is there an obligation to register the agreement?
- Can the director of the Decision Support Service investigate a complaint?
- The power of the Circuit Court to dismiss a decision-making assistant
- The Co-Decision-Making Agreement: when does it come into force?
- Restrictions on who can act as a co-decision maker
- Is there an obligation to apply the guiding principles and to give effect to past will and preferences in reaching the decision “jointly”?
- Provisions in relation to the serving of notices
- Registration requirements: Must a statement be included as to why the less intrusive decision-making assistance agreement was not chosen?
- The extent of the reporting obligations
- Periodic reviews of Co-Decision-Making Agreements by the Director of the Decision Support Service
- What action is open to the Director if a co-decision maker fails to file an annual report?
- The extent of the powers of the Director to investigate a complaint
- Liability for breach of the Co-Decision-Making Agreement
- Decision-Making Representative: Appointment by the Circuit Court
- Provisions in relation to emergency situations
- Is there a duty on the Court to ensure that any order made is not inconsistent with the terms of either and EPA or and Advance Healthcare Directive?
- Should the Court have regard to the will and preferences of the individual in relation to the choice of appointment of the Decision-Making Representative
- Accounting and reporting obligations
- Oversight of the Decision-Making Representative by the Director of the Decision Support Service
- Restrictions on the Decision-Making Representative: implications for refusal of life sustaining treatment, and the disposal of the person’s property by way of gift
- Can more than one Decision Making Representative be appointed by the Court?