Assisted Decision-Making (Capacity) Bill 2013 (“The Bill”)
The current approach to capacity in Ireland is archaic and is based on a medical assessment of the individual. The current status is “all or nothing”. The Bill proposes to change this so that capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter this will not necessarily mean that they lack capacity in another matter.
What does the Bill aim to do?
The Bill aims to modernise the law and support decision-making by adults who have difficulty making decisions without help. The Bill aims to “safeguard the autonomy and dignity of the person with impaired capacity”.
Guiding Principles of the Bill
1. There will be a presumption of capacity unless the contrary is shown;
2. Intervention will only take place where necessary;
3. Only where all practical steps have been taken will a person be treated as being unable to make a decision;
4. The persons rights and freedoms will be respected at all times;
5. The persons will and preferences will be taken into account at all times.
Three types of Decision Making Support Options
The Bill proposes three types of decision-making support options which are:-
– Assistant Decision-Making – an assistant is appointed to support him or her to understand and make the decision;
– Co-decision making – a person is appointed to make decisions jointly;
– Decision-making representative – (for the minority of people who are unable to make decisions even with help) the Circuit Court appoints a representative to make decisions on behalf the person.
Other areas covered by the Bill
The Bill expands the powers afforded to Attorneys in relation to Enduring Powers of Attorney. It deals with instances where informal decision making takes place on a regular basis and provides protection from liability for those involved in the informal decision making process. It also proposes the replacement of the Wards of Court office with the Office of Public Guardian to deal with capacity-related matters for adults.
Niall Colgan is a Cork based Solicitor with over 10 years experience in private practice. 
