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:

Legislation

Functional test of capacity

Guiding principles

Important safeguards

Wards of court

Here is a list of all the relevant legislation:

2015 Act

Consolidated Act

Commencement Orders

2022 Act

Commencement Orders

Regulations

Circuit Court Rules

Superior Court Practice Directions

Court Forms

Judgement Summaries

Other related legislation