Legislation

This section tells you about the Assisted Decision-Making (Capacity) Act 2015 and the important changes it will bring about for people who require support to make decisions and anyone interacting with them.

The Assisted Decision-Making (Capacity) Act 2015 was signed into law by the President on 30 December 2015. The 2015 Act is an important piece of reforming human rights law. 

The act replaces two laws about decision-making capacity that have been in place since the 19th century. These are the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871.

The 2015 Act establishes a modern legal framework to support decision-making by adults who may have difficulty making decisions without help.

It introduces 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 will and preferences
  • Consider the views of other people
  • Think about how urgent the action is
  • Use information appropriately

Important safeguards

The 2015 Act introduces 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 annual monitoring reports.

The Decision Support Service will also receive and investigate complaints made about decision supporters and decision support arrangements. 

Wards of court

The 2015 Act replaces the Wards of Court system. When the new law comes into effect people will no longer be able to be made a Ward of Court. All current wards must be reviewed within three years and must leave wardship.  

 

Read the 2015 Act here:

Assisted Decision Making Capacity Act 2015

Some parts of the Act have come into effect. Read more about this here:

S.I. No. 515/2016 - Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016

S.I. No. 517/2016 - Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) (No.2) Order 2016

S.I. No 527 of 2018 – Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2018