The future of the law relating to Capacity Matters
Following on from last week’s review of the current law, it highlights how the current Enduring Power of Attorney and Wards of Court regime is an “all or nothing” approach, i.e. the person either has capacity or does not. In the event of a person having diminished capacity, this approach can lead to them being deprived of the ability to make any decisions, not just the decision they need assistance to make.
The Assisted Decision-Making (Capacity) Act 2015 changes the current regime to allow for a functional approach to the question of capacity rather than a medical one. The functional approach dictates that the person’s capacity “shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time”, as defined in the legislation. The test is effectively issue specific and time specific.
The 2015 Act overhauls the law in the area of capacity and time does not permit a detailed analysis of the Act. However, the following should be noted:
- The Act sets out a new statutory regime for the execution of Enduring Powers of Attorney inbuilt with extra safeguards such as an additional statement from a healthcare professional; a statement by a legal practitioner to the effect that they are satisfied that the Donor is aware of the right to vary or revoke the Enduring power of Attorney and that the Enduring Power of Attorney is not being executed as a result of fraud, undue pressure or coercion; supervision by the Director of Decision Support Service and the introduction of a criminal offence where a person uses fraud, coercion or undue influence to force another person to make, vary or revoke an Enduring Power of Attorney
- The Wards of Court system is replaced by a system to facilitate persons to make decisions using different types of intervention. The first level of intervention is through an agreement for a decision-making assistant to be appointed to assist the person in making their decision. There are notification requirements upon the making of such an agreement.
The next level of intervention is through the appointment of a Co-Decision Maker by way of agreement. This agreement must be registered to have force and a register of such agreements shall be maintained and periodic reviews carried out by the Director.
Lastly, where the person is unable to exercise their decision-making capacity and cannot avail of a Decision Making Assistant or a Co-Decision Maker the Court can appoint a Decision-Making Representative.
- The Act allows for Advanced Healthcare Directives (AHD) to be made and sets out the requirements for validity.
Although the 2015 is not yet in force, it is clear that the issue of capacity is now one which must be dealt with using the functional approach. This approach will allow more autonomy for the older members of our society and will facilitate the right to choose.
The 2015 Act will allow everyone to make comprehensive provision for all of their affairs by making a will, an Advanced Healthcare Directive and an Enduring Power of Attorney. Until such time, we continue to urge all our clients to make a will and EPA.