ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 (1)
The Assisted Decision-Making (Capacity) Act 2015 was signed by The President in December 2015.
The object of the Act is to establish a modern framework to support decision making by vulnerable adults who have difficulty making decisions without assistance. Vulnerable adults may experience difficulties around decision making because of intellectual disability, acquired head injury or old age.
The act overhauls capacity legislation which has been in place since the 19th century.
A number of sections of the Act were commenced on 17th October 2016. However, to date, the Act has not been fully commenced.
The Act provides for the establishment of the Decision Support Service within the Mental Health Commission.
A director of the Decision Support Service has been appointed.
Previously Capacity was assessed on a 'status' basis. Now it is to be assessed on a functional basis. Capacity is therefore a fluid concept which depends on the vulnerable person's circumstances at the time of the making of the decision and the nature of the decision to be made. The clear intent of the act is to move away from a paternalistic system.
Where a person is assisting a vulnerable person in making a decision, the assistant must assist the vulnerable person in making the decision of the vulnerable person's choice so long as no harm would come to the vulnerable person or another person.
The Act explicitly states that it does not apply to capacity or consent required in relation to marriage, civil partnership, judicial separation, divorce, the placing of a child for adoption, the making of an adoption order, guardianship, sexual relations, serving as a member of a jury or making a will.
The Wards of Court system is to be done away with.
The Act will bring in changes in relation to Enduring Powers of Attorney and will in due course supercede the Powers of Attorney Act 1996.
The Act also provides for Advanced healthcare directives where an individual is over 18 and has capacity.