Leading law firm criticises delay in the commencement of Assisted Decision-Making law

Cork based, FitzGerald Solicitors is calling for the long-awaited commencement of the Assisted Decision-Making (Capacity) Act 2015 which was signed into law last December.


Thousands of people throughout Ireland have been patiently awaiting the implementation of the law, which was last year heralded as a long-overdue milestone that would allow those with intellectual disabilities, people with diminished capacity or dementia and people whose capacity has been affected by traumatic injury to better manage their property, financial and personal affairs.


The ground-breaking legislation is a comprehensive reform of the law on mental capacity which replaces the Wards of Court system.


It replaces the archaic Lunacy Regulation (Ireland) Act is enacted in 1871. When the new provisions commence it will mean that adults with diminished mental capacity will be granted the same human rights, respect, dignity, and independence to make decisions for themselves when possible.


For the first time, Irish law will provide for supported decision-making through assistants, co-decision-makers, or decision making representatives, who will be appointed based on the capacity of the person.


Solicitor Noel Doherty, Partner with FitzGerald Solicitors, works with a number of clients with diminished capacity who are affected by the failure to commence the Act and who are at risk of becoming wards of court if it is not commenced.


He explained how the new law will safeguard a person’s autonomy and dignity:


“A person who has attained the age of 18 and who considers that his or her capacity is in question or may shortly be in question, may enter an agreement with another person (as a Decision-Making Assistant or as a Co Decision Maker) who was also attained that age to assist him or her in making one or more than one decision on their welfare or property and affairs or both. The decision makers will work with the person to assist them in understanding the issues and the choices that they have.


“If the decision cannot be made by the person then the decision-making assistant/co decision maker will enquire if the person had planned ahead.


“The Assisted Decision-Making Act allows all of us to put advance healthcare directives and /or Enduring Powers of Attorney in place to provide for decisions that we may not be able to make at some future time in our lives. If there are clear directions as to how the decision in question is to be made then those directions need to be applied.


“If a person has not planned ahead and if they are unable to make the decision then it is possible for the court to appoint a Decision Making Representative for the purpose of making the decision.”


Noel says that it is not just people who currently have diminished capacity who will benefit from the commencement of the Act. Every citizen in the country currently has the power to put in place an Enduring Power of Attorney and once the Act comes into force, to put in place an Advanced Healthcare Directive to ensure that their wishes are honoured if they do not have the capacity to make important decisions at some point in their future.


“We should all have the right to retain control over important decisions that affect us and it is imperative that the government commences the legislation immediately and makes the resources available to implement the provisions effectively.”

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