FAQ

Frequently asked questions

The Assisted Decision-Making (Capacity) Act was signed into law in December 2015. However, it is not yet fully commenced. The Act recognises that, as far as possible, all adults have the right to play an active role in decisions that affect them. These decisions can be about their personal welfare and property and affairs.

The 2015 Act brings about important changes for people who require support to make decisions and for anyone interacting with them. 

The 2015 Act:

  • Introduces new guiding principles about interacting with a person who has difficulties with their decision-making capacity
  • Establishes a tiered system of decision support arrangements for people who need help with making decisions
  • Abolishes the current wardship system and requires all wards of court to be discharged from wardship within three years of commencement of the Act.
  • Establishes the Decision Support Service

You can find out more about the 2015 Act on our Legislation page.

 

The Decision Support Service is a new service for all adults who have difficulties with their decision-making capacity. 

The Decision Support Service is a public body established within the Mental Health Commission by the Assisted Decision-Making (Capacity) Act 2015. Our job is to register the new decision support arrangements and supervise the individuals who are providing a range of supports to people with capacity difficulties.

Any adult who needs support to exercise their decision-making capacity could need the Decision Support Service. This may include, but is not limited to people with an intellectual disability, mental illness, dementia or acquired brain injury, as well as people with age-related conditions. People may require the Decision Support Service when a third party such as a bank, lawyer or hospital questions a person’s capacity to make a decision or give consent.

Any person who wants to plan ahead for a time in the future when they may lose capacity could also need the Decision Support Service.

No, the Decision Support Service will not make decisions for you. If you need help with certain decisions, you may appoint a 'decision supporter' to help you. The type of help your decision supporter can provide will depend on the decision support arrangement that is in place.

In some cases, the court may ask us to provide a decision-making representative from our panel of trained experts to act as your decision supporter. A decision-making representative can only be assigned to you by a court order.

Under the current plan, the Decision Support Service will begin to operate in June 2022.

We are not fully operational at this time. We are waiting for commencement of the new law (the Assisted Decision-Making (Capacity) Act 2015). We are working closely with the Department of Children, Equality, Disability, Integration and Youth and the Department of Health about the new law. 

Many different organisations will need to be ready for the new law. Find out more on our Getting Ready page.

The Decision Support Service will provide a “digital-first” service. This means that you will be able to access our services through our website.

We will provide information and guidance to help you when you are using our online services. We will also have an information services team who can help if you have any difficulties or questions.

We understand that using our online service may not work for everyone. We will have paper options available for people who need them.

When the 2015 Act refers to a ‘relevant person’, it means a person whose capacity to make one or more decisions is, or may shortly be, in question. Under the new law, a person’s capacity must be assessed based on their ability to make a specific decision at a specific time.

Section 8 of the Assisted Decision-Making (Capacity) Act 2015 sets out nine guiding principles. You can read more about the guiding principles on our Legislation page.

There will be five different decision support arrangements available. These arrangements are based on the different levels of support that a person requires to make a specific decision at a specific time.

There will be three tiers of decision support available for people who currently, or may shortly, face challenges when making certain decisions. These are:

  • Decision-making assistance agreement (the person makes their own decision with support from their decision-making assistant. Their decision-making assistant helps them to access and to understand information and to communicate their decision)
  • Co-decision- making agreement (the person makes specified decisions jointly with a co-decision-maker)
  • Decision-making representation order (the court appoints a decision-making representative to make certain decisions on the person’s behalf).

There are two types of decision support arrangement for people who wish to plan for a time in the future when they might lose capacity. This includes an advance healthcare directive and an enduring power of attorney.

You can find out more on our Decision Support Arrangements page.

This is not a term in the 2015 Act. The Decision Support Service uses the term ‘decision-supporter’ to refer to a person who has been appointed as a:

  • decision-making assistant under a decision-making assistance agreement
  • co-decision-maker under a co-decision-making agreement
  • decision-making representative under a decision-making representation order
  • attorney under an enduring power of attorney
  • designated healthcare representative under an advance healthcare directive.

The type of support they can provide depends on the decision support arrangement in place.

Ideally, a decision supporter will be a family member or trusted friend.

At the upper tier of support, the person may not have someone who is available and suitiable to act as a decision-making representative. The Decision Support Service will recruit and maintain a panel of people who are suitable to act as decision-making representatives. The court can ask us to nominate two decision-making representatives from this panel and the court can choose to appoint one of them. 

You can find out more about decision supporters our Decision Supporters page.

A decision-making representative’s role is to make certain decisions on behalf of a person if they are unable to make those decisions for themselves. They will be appointed by the court in an order called a decision-making representation order.

The court order will list all the decisions that the decision-making representative can make. This may include decisions about the person’s personal welfare and property and affairs. A decision-making representative can only make decisions that are included in the order.

You can find out more about the role and responsibilities of a decision-making representative on our Decision-Making Representatives page.

The court may decide to appoint more than one decision-making representative to make decisions on behalf of a person. If the court appoints more than one decision-making representative in a decision-making representation order, it will say whether they:

  • must make the decisions in the order together
  • can make the decisions together or separately
  • must make some decisions together but can make other decisions together or separately.

This is the middle tier of support.To be a co-decision-maker, you must be 18 years and over. You must be known and trusted by the person appointing you.

There are some circumstances where you cannot be a co-decision-maker. You can find out more about who can be a co-decision-maker our Co-Decision-Makers page.

You can only appoint one co-decision-maker in a co-decision-making agreement. However, if you wish to have different co-decision-makers for different types of decisions, you can appoint them under separate co-decision-making agreements.

 

If you wish to plan ahead, you can make an advance healthcare directive. This lets you set out your wishes regarding treatment decisions in case you are unable to make these decisions in the future. Importantly, it lets you write down any treatment you do not want.

Under the new law, you will be able to appoint someone you know and trust as your designated healthcare representative to ensure your advance healthcare directive is followed.

You can find out more on our Advance Healthcare Directives page.

You can end your advance healthcare directive at any time if you have capacity to do so. You can also change your advance healthcare directive. Your advance healthcare directive only starts to apply if you lose capacity. It can be a good idea to review and update your advance healthcare directive on a regular basis to ensure that it reflects your wishes. You should also review and update it following any major medical treatment or diagnoses to ensure it reflects your medical situation.

If you have a safeguarding concern about an adult who may be at risk, please contact the Health Service Executive (HSE). The HSE have dedicated Safeguarding and Protection Teams that deal with safety concerns. A list of HSE contact details can be found on our Useful Links page.

In the case of an emergency, please contact the Gardaí or emergency services.

If we receive a complaint or allegation of abuse as part of our supervisory and complaints functions, we will escalate this appropriately.

It will also be important that organisations that become aware of a complaint of abuse involving a decision supporter contact us so that we can take appropriate action.

Any person who has a safeguarding concern about an adult at risk should contact the HSE Adult Safeguarding Team in their area. In an emergency, please contact the Garda Síochana or emergency services.

We are not currently able to receive complaints. When we are fully operational, we will be able to investigate complaints about decision-making arrangements and decision supporters.

If there is a medical emergency, and you do not have a decision supporter or an advance statement (for example an advance healthcare directive or an enduring power of attorney), a healthcare professional may need to provide you with necessary treatment without your consent. If you do have a decision supporter or an advance statement - and the healthcare professional has access to it, they will have to consult your supporter or statement, unless the delay in doing so might cause you serious harm.

It is important that if you make an advance healthcare directive or an enduring power of attorney, which includes your wishes about healthcare and treatment, that you let important people know, like your family, friends and general practitioner. In this way, you can help to make sure your medical wishes are respected even in an emergency.

Not at this time. You will not be able to register a decision support arrangement with us until the new law is commenced and we are up and running. You can however still make an enduring power of attorney or an advance healthcare directive. You can find out more on our Useful Links page.

Not at this time. We will not keep a register of decision support arrangements until the new law is commenced and we are up and running. Following commencement, you will be able to search the register if you can show that you have a good reason to. This is referred to as having a ‘legitimate interest’. Approved persons and organisations, like banks, lawyers and healthcare professionals will also be able to search the register.

We will keep a searchable register for the following types of arrangements:

  • Co-decision-making agreements
  • Decision-making representation orders
  • Enduring powers of attorney

If we approve your request to search the register, we will decide whether you can see some or all of the details in the arrangement. We will also decide whether you can get a copy of the arrangement. 

Approved professionals and organisations will be able to search the register to:

  • Confirm that an arrangement exists and is active
  • See the details of the arrangement
  • Get a copy of the arrangement

Yes. You and your decision supporter will need to set up an account with the Decision Support Service before you register a decision-support arrangement. When signing up, we will need you to provide us with your MyGovID, some personal details and contact information. Keep up to date with our Getting Ready page for more information.

If you do not have a person you know and trust who is able to be your decision supporter, at the upper tier of support only, the Decision Support Service may be able to nominate a decision-making representative from our panel. A decision-making representative can only be assigned to you by a court order.

If you need someone to help you to access information and explain it to you, you may find it helpful to contact an advocacy organisation. You can find out more on our Useful Links page.

The Act provides for four different panels. These are decision-making representatives, special visitors, general visitors and court friends.

Codes of Practice and terms and conditions will define the roles and responsibilities of panel members. The Department of Children, Equality, Disability, Integration and Youth, the Department of Public Expenditure and Reform and the Department of Health are responsible for setting terms and conditions for panel members. We are actively engaging with the relevant Departments to agree terms and conditions.

Keep up to date with our Careers and News and Events pages for more information on becoming one of our panel members.

You may have to pay to register a co-decision-making agreement and an enduring power of attorney. The Department of Children, Equality, Disability, Integration and Youth will set these fees. We will provide information about these fees when they have been set.

There will also be costs relating to an application to court to make a decision-making representation order. Some people may be able to get legal aid to, including legal representation.

Some people may not have to pay a fee, or will pay a lesser fee. This will depend on your individual circumstances, including your income or certain benefits you receive.

If you already have made an Enduring Power of Attorney (under the Powers of Attorney Act 1996) then you can keep that arrangement and it will continue to be valid. The only change is that the Decision Support Service will be able to investigate complaints about an attorney under the 1996 Act.

If you wish to make an enduring power of attorney following commencement of the 2015 Act, you will only be able do so under the new law.

When the new law comes into effect, people will no longer be able to be made a Ward of Court. Any ward of court or someone on their behalf can apply to the wardship court to have their case reviewed.

All current Wards of Court will be reviewed by the wardship court and discharged from wardship within three years after the new law comes into effect. The courts will decide whether or not a current Ward of Court needs formal support under the new Act. 

Adults with an intellectual disability are presumed to have the capacity to make decisions, like everybody else. This includes the decision to get married. This is already the law.

As in every case, the registrar must be satisfied that both adults have the capacity to marry. If necessary, a person with a genuine interest in the adult’s welfare will be able to make an application under Part 5 of the 2015 Act to ask the court to declare whether they have capacity to marry. The person who applies to the court could be the registrar.

A decision supporter will not have the authority to consent, or withhold consent, to marriage on a person’s behalf.

The 2015 Act also repeals a very old law which said that a person could not get married if they were a ward of court. This came into effect in February 2021. This means that a ward of court may now get married if they have capacity to do so.

You do not need a lawyer to make a decision support arrangement. Detailed information on how to make a decision support arrangement will be available on the Decision Support Service website for you to follow. However, if you wish to make an Enduring Power of Attorney under the new law you will need a statement from a lawyer that you understand the arrangement.

A capacity assessment looks at a person’s ability to make a decision for themselves. The assessment used under the new law is called a ‘Functional Test’ for capacity. This means the assessment is about a specific decision that needs to be made at a specific time. You may not make a blanket assessment that a person has no capacity.

Applying the functional test, a person can be said to lack capacity to make a decision if they are unable to do one of the following:

  • Understand information relevant to the decision,
  • Retain that information long enough to make a voluntary choice,
  • Use or weigh up that information as part of the process of making the decision,
  • Communicate their decision in whatever way they communicate (not only verbally).

Under the new law, everyone is presumed to have capacity at all times. The first step is to support people to make their own decisions. In some circumstances there may be a reason to question a person’s capacity to make a certain decision. The person who requires the decision to be made will often be the best person to do the capacity assessment. This could be, for example, a lawyer, doctor, or a person providing financial services.

Under the new law, there are also limited circumstances where the capacity assessment has to be undertaken by healthcare professionals. This is during the process of registering a co-decision-making agreement or enduring power of attorney. Formal statements from healthcare professionals are required to register these arrangements.

At present, there is no legal basis for a family member or ‘next-of-kin’ to take on an automatic decision-making role or to give or withhold consent on behalf of another adult. Every adult is presumed to have decision-making capacity and may choose whether or not a family member is involved when they are making decisions. They may also decide whether or not their information is shared with a family member.

When the 2015 Act commences, a person who faces challenges when making decisions may give someone they know and trust, such as a family member or carer, the legal authority to act as their decision supporter. 

The person’s need for a decision support arrangement will depend on their circumstances and the decisions that they need to make.

At the upper tier, where the court appoints a decision-making representative to a person, it will appoint someone known and trusted by them where possible. The court must consider the wishes of the person when appointing a decision-making representative. 

For the following types of decision support arrangement, the person who may require support must choose whether or not to make an arrangement:

  • Decision-making assistance agreement
  • Co-decision-making agreement
  • Enduring power of attorney
  • Advance healthcare directive

They must also choose who they wish to appoint as their decision supporter. A family carer cannot make a decision support arrangement for the person or on their behalf. We will provide information for family members and carers who wish to help a person to make a decision support arrangement.

If you believe a person is unable to make certain decisions for themselves, you may ask the court to make a decision-making representation order. The court will decide whether to appoint a decision-making representative for the person and who will act in this role.

Part of our role is to promote public awareness of the 2015 Act and to provide information about our services. This includes providing information and guidance to people who may use our service and their families.

We are engaging on an ongoing basis with different groups of people who may come into contact with the Decision Support Service.

We will continue to update information about the Act and our services on our website. We will also provide a range of guidance and other online resources in accessible formats for service users, decision supporters and other people who may come into contact our service.

We will have a dedicated information services team in the Decision Support Service to help with any queries and to provide relevant information.

We recommend that service providers consider what measures they will need to have in place to support service users following commencement of the 2015 Act. This includes, for example, policies and processes around consent procedures, communication with supporters, and assessing capacity.

We will publish Codes of Practice and provide a number of resources to help organisations fulfil their legal and professional obligations under the 2015 Act. 

You can find out more in our Getting Ready section.

The Decision Support Service will carry out a public consultation before the final Codes of Practice are published with Ministerial approval. We intend to do this after the legislation to amend the 2015 Act is finalised. The Codes of Practice will be published before commencement of the 2015 Act.