Assisted Decision-Making (Capacity) Bill 2013

Assisted Decision-Making (Capacity) Bill 2013

The long awaited Assisted Decision-Making (Capacity) Bill 2013 has arrived!

Announcing publication of the Assisted Decision-Making (Capacity) Bill 2013 (Bill) on 17 July, the Minister for Justice, Equality and Defence, Alan Shatter TD commented that it: "will effect a fundamental reform of our law by prescribing an entirely new supportive architecture reflecting the State's international obligations and by implementing the commitment to reform contained in the Programme for Government."

What does the Bill do?  

• Reforms the current law on capacity by repealing the existing outdated regime (the Marriage of Lunatics Act, 1811 and Lunacy Regulation (Ireland) Act, 1871) and introducing a more modern and functional approach, whereby capacity is gauged on an issue-and time-specific basis which takes account of fluctuations in capacity.
 
• Replaces the Wards of Court system with a new legal framework to support decision-making by adults, enabling them to maintain maximum autonomy where a lack of capacity arises.
 
• Provides a statutory framework for formal agreements by persons who consider that their capacity is (or may in near future be) in question appointing a relevant person to act as a  decision-making assistant or a co-decision-maker for decisions related to their personal welfare, property and/or affairs.   It also facilitates informal arrangements and provides for court ordered decision-making representation in limited circumstances. 
 
• Enables court applications to seek a declaration as to whether or not a person whose capacity may be in question does in fact lack capacity and for the making of related orders.
 
• Modernises the law on enduring powers of attorney by protecting informal decision-makers from liability for personal welfare and healthcare decisions made on behalf of a person with impaired capacity where the decisions were necessary and no formal decision-making arrangement existed.
 
• Creates a new statutory office of Public Guardian with supervisory powers to oversee decision-making assistants, co-decision-makers, decision-making representatives and persons holding enduring powers of attorney.
 

International Law Impact  

The Bill also has a broader international law impact in that it gives effect in the State to the Hague Convention on the International Protection of Adults and makes related provision as to the private international law of the State. 

Additionally, the comprehensive reform of the current system proposed by the Bill was described by Minister Shatter as a "long overdue" reform of the law and a "major step towards ratification" of the UN Convention on the Rights of Persons with Disabilities. 

To view the explanatory memorandum and the text of the Bill as initiated, click here.  

How can ByrneWallace help?

 
Our multi-disciplinary Healthcare Group will provide regular information & analysis regarding key changes and reforms in the Bill as well as updates on the progress of the Bill through the legislative process and timeline for enactment.  We can also provide valuable advice and assistance on navigating and preparing for the new regime and assessing the likely impact and extent to which it will change current legal obligations. If you are interested in receiving e-bulletins and other updates in relation to the Bill and other issues affecting the healthcare sector and/or invitations to related events and seminars held by ByrneWallace, please click here to register for our mailing list. 

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