DSS welcomes commencement of Section 7(1) of the Assisted Decision-Making (Capacity) Act 2015

The Decision Support Service welcomes the signing by Minister O’Gorman of a Statutory Instrument to commence section 7(1) of Assisted Decision-Making (Capacity) Act 2015. The 2015 Act is fully enacted legislation but most of the Act is not yet operational and work is ongoing to prepare for its commencement in mid-2022. 

The recent development has the effect of repealing the Marriage of Lunatics Act 1811 which prevents persons who are wards of court from getting married. When the Act is commenced, it will also abolish the wards of court system for adults, which is administered under the Lunacy Regulation (Ireland) Act of 1871. All current adult wards of court will have their cases reviewed and where appropriate will transition to a modern framework of supports provided under the 2015 Act. The Act emphasises the principles of dignity, autonomy and respect for the individual will and preferences of all persons and is an essential part of Ireland's compliance with the United Nations Convention on the Rights of Persons with Disabilities.

The decision to proceed with the repeal of the Marriage of Lunatics Act has been prompted by a legal challenge brought by an intellectually disabled man who wishes to marry his long-term partner. In June 2019, the High Court granted an injunction to prevent the man’s wedding which was to take place the following day. At that time, the court began an enquiry into wardship.

The full implications for this man’s particular case are unclear and his legal challenge is still before the court. What is clear, however, is that wards of court are no longer disbarred from marrying by virtue only of the fact that they are wards of court. This is a welcome further step towards the full rollout of the 2015 Act and another move away from the language and ethos of antique legislation.

In wardship, a person is declared to be of ‘unsound mind and incapable of managing his or her his affairs’. Post commencement of the new Act, where there is a query about a person’s capacity to marry, this may be the subject of a specific application to the circuit court. Under the new Act, a finding of incapacity to marry will have no implications in relation to a person’s decision-making in other matters. The person will have full access to the court and to legal representation and such a finding of incapacity will be subject to periodic review.