Legislation

This section tells you about the Assisted Decision-Making (Capacity) Act 2015 (as amended) and the important changes it has made and will continue to make for people who require support to make decisions and anyone interacting with them.

The Act was signed into law by the President on 30 December 2015 and fully commenced on 26 April 2023. The Act was amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022 which was signed by the President on 17 December 2022. The Act is an important piece of reforming human rights law. The Act replaced two laws about decision-making capacity that were in place since the 19th century. These were the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871. The Act established a modern legal framework to support decision-making by adults who may have difficulty making decisions without help. It introduced three types of support arrangements for people who currently, or may shortly, face challenges when making certain decisions. 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.

Functional test of capacity Under the 2015 Act, a person is always presumed to have capacity. In a situation where a person’s capacity is questioned, capacity will be assessed based on their ability to make a specific decision at a specific time. This is called the ‘Functional Test’ of capacity. A person will be considered to have the capacity to make a decision if they can:

• Understand the information relevant to the decision

• Remember the information long enough to make a choice

• Use or weigh up the information to make a decision

• Communicate their decision (this may be with assistance)

Guiding principles The 2015 Act also sets out nine guiding principles for anyone interacting with a person who has difficulties with their decision-making capacity. These include:

• Presume every person has the capacity to make decisions about their life

• Support people as much as possible to make their own decisions

• Don’t assume a person lacks capacity just because of an unwise decision

• Only take action where it is really necessary

• Any action should be the least restriction on a person’s rights and freedoms

• Give effect to the person’s wishes, values and beliefs

• Consider the views of other people

• Think about how urgent the action is

• Use information appropriately

Important safeguards The Act introduced important safeguards requiring the Decision Support Service to oversee and supervise decision support arrangements. This includes the monitoring of decision supporters, for example, through the review of objections and review of periodic monitoring reports. The Decision Support Service also receives and investigates complaints made about decision supporters and decision support arrangements. Wards of court The Act abolished and replaced the Wards of Court system. Section 56(3) transitional arrangements (2022 Act): a person can still be made a ward of court if wardship proceedings were initiated before commencement. Section 56(6) –(7) provides that the intended ward may access the support arrangements under the 2015 Act and the wardship proceedings will then be withdrawn. All current wards must be reviewed by the Wardship Court within three years and must leave wardship. Here is a list of all the relevant legislation: 2015 Act Assisted Decision-Making (Capacity) Act 2015 Consolidated Act Assisted Decision-Making (Capacity) Act 2015 (consolidated version) Law Reform Commission Commencement Orders S.I. No. 515/2016 - Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016. S.I. No. 517/2016 - Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2016 S.I. No. 527/2018 - Assisted Decision Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2018 S.I. No. 24/2021 - Assisted Decision-Making (Capacity) Act 2015 (Section 7(1)) (Commencement) Order 2021 2022 Act Assisted Decision-Making (Capacity) (Amendment) Act 2022 Commencement Orders S.I. No. 46/2023 - Assisted Decision - Making (Capacity) (Amendment) Act 2022 (Commencement) Order 2023 S.I. No. 192/2023 - Assisted Decision - Making (Capacity) Act 2015 (Commencement) Order 2023 S.I. No. 193/2023 - Assisted Decision - Making (Capacity) Act 2015 (Commencement) (No.2) Order 2023 S.I. No. 194/2023 - Assisted Decision - Making (Capacity) (Amendment) Act 2022 (Commencement) (No. 2) Order 2023 S.I. No. 195/2023 - Assisted Decision - Making (Capacity) (Amendment) Act 2022 (Commencement) (No. 3) Order 2023 Regulations S.I. No. 202/2023 Assisted Decision - Making (Capacity) Act 2015 (Fees) Regulations 2023 S.I. No. 203/2023 Assisted Decision - Making (Capacity) Act 2015 (Payment of Certain Expenses and Remuneration to Decision - Making Representatives) Regulations 2023 S.I. No. 204/2023 Assisted Decision - Making (Capacity) Act 2015 (Prescribed Classes of Healthcare Professionals) Regulations 2023 S.I. No. 205/2023 Assisted Decision - Making (Capacity) Act 2015 (Section 10(4)) Regulations 2023 S.I. No. 206/2023 Assisted Decision - Making (Capacity) Act 2015 (Inspection of Registers and Receipt of Copies of Documents) Regulations 2023 Circuit Court Rules S.I. No. 201 /2023 Circuit Court Rules (Assisted Decision - Making (Capacity) Act 2015) 2023 Superior Court Practice Directions High Court Practice Directions – Wards of Court Court Forms Circuit Court - Assisted Decision Making (Capacity) Act - Court Application Forms Judgement Summaries Summary of Judgements Other related legislation S.I. No. 436/2020 - Disability, Equality, Human Rights, Integration and Reception (Transfer of Departmental Administration and Ministerial Functions) Order 2020 Section 54 Domestic Violence Act 2018 Amendment of section 2 of Assisted Decision-Making (Capacity) Act 2015