If you work in the legal or healthcare sector, the long-awaited commencement of this Act today, the 26th April 2023, will certainly not be news to you. The Act was created to support decision-making and maximise a person’s capacity to make decisions. The Act provides for a new legal framework to support people who may have difficulties with their capacity to make certain decisions.

The Act introduces a new legal framework for supported decision-making in Ireland. The Act ensures greater protection for vulnerable members of society in relation to their decision-making capacity. One of the guiding principles of the Act is the presumption of capacity. Every adult is presumed to have capacity unless the contrary is shown in accordance with the Act. This ensures that every case is treated individually and that certain cohorts of people are not automatically deemed to lack capacity.

This is completely new law to all legal professionals and there is no doubt that the system will take some getting used to. There are still a lot of unknown components in this legislation which may take some time to work through however I will do my best to set out the situation as it currently stands.

Decision Support Service

The Act establishes a Decision Support Service (DSS) within the Mental Health Commission to oversee the operation of the Act. As of today, there are five different decision support arrangements for people who have challenges with their capacity and who may need support to make certain decisions.

There are three types of decision supports for people who currently face challenges when making decisions:

• Decision-Making Assistance Agreement
• Co-Decision-Making Agreement
• Decision-Making Representation Order

There are two types of decision support for people who wish to plan ahead for a time in the future when they may be unable to make certain decisions:

• Advance Healthcare Directive
• Enduring Power of Attorney

This week, I will begin by discussing the three types of decision supports available for people who currently face challenges when making decisions.

Decision-Making Assistance Agreement (DMAA)

A DMAA is an agreement that lets you specify decisions you need help with and gives someone the legal authority to help you to make those decisions yourself. If you have difficulty making certain decisions on your own, you can appoint someone you trust to act as a decision making assistant under the agreement.

Your decision-making assistant will help you to gather information, explain it to you and help you to understand your options. They can also help to let other people know what your decision is. The agreement can be for a certain period of time, or it can be ongoing. You can have more than one decision-making assistant in your agreement.

The agreement must be in writing and include details of the decisions that your decision-making assistant will help you with. It must include a statement by you that you understand the agreement. Your decision-making assistant must confirm that they understand their duties and will carry them out. It is important to note that whilst you have the assistance and support, you actually make the decision for yourself.

You or your decision-making assistant can end the decision-making assistance agreement at any time. It does not need to be replaced by another type of decision support arrangement. However, if you need more support for making decisions, you might need a co-decision-making agreement or a decision-making representative.

Co-Decision Making Agreement (CDMA)

If you are unable to make certain decisions on your own you can make a CDMA. This agreement lets you choose someone you know and trust as a co-decision-maker. Your co-decision-maker will make certain decisions jointly with you. Similarly, to a decision-making assistant, your co-decision-maker will help you to gather information, explain it to you and help you to understand and weigh up your options. They can also support you to let other people know about the decision you have made together.

The agreement must be in writing and must be signed by you and your co-decision-maker. The agreement needs to be witnessed by two other people who are not related to you, similar to the requirements for signing your will. It must contain details of the decisions that you and your co-decision-maker will make together. In this instance, both you and your co-decision maker make the decision together.

You will need a doctor and another healthcare professional to assess your capacity and confirm that you are able to enter into the agreement.

The agreement must be registered with the DSS. You must formally notify certain people, like your spouse and adult children, about the agreement. You must also provide them with copies of the agreement.

The CDMA must be registered with the DSS who will monitor each registered agreement to ensure that you continue to understand the agreement and that it is still in line with your wishes.

The co-decision-maker must send a written report to the DSS every year. This report must include details of financial matters, costs and expenses related to the agreement.

The CDMA can be changed once it has been registered with the DSS for more than six months. Both you and your co-decision maker must agree to any and all changes.

The CDMA can be ended at any time in whole or in part. It must be ended in writing and must also be signed by two witnesses. You must notify the DSS if it is being ended and it will then be removed from the register.

Decision-Making Representation Order (DMRO)

If you are unable to make certain decisions even with someone else’s support, the Court may appoint a decision-making representative to you to make certain decisions on your behalf, taking into account your wishes.

If possible, the Court will appoint someone you know and trust as your decision-making representative. However, if there is no-one willing or able to act on your behalf, the Court may appoint someone from a panel of trained experts.

The decision-making representative can only make decisions that are written down in the Order and must consider your wishes at all times during the decision-making process. The Court can appoint more than one person to act as a decision-making representative.

When the Court makes a DMRO, the DSS must be notified and a copy sent to them so that the DMRO can be registered on their system.

The Court will check that the arrangement is working the way it should on an ongoing basis and the DSS will also monitor decisions made by the decision-making representative. The decision-making representative must submit a written report to the DSS every year. Each report must include any details of financial matters, costs and expenses related to the decisions included in the order.

Only the Court can change a DMRO. The Court may decide to change a DMRO following an application to the Court by you, your decision-making representative or any other person with a genuine interest in your welfare.

A DMRO can be ended if:

• The Court decides to end the Order following an application by you, your decision-making representative or any other person with a genuine interest in your welfare.
• The Court decides that you have regained capacity.
• Your decision-making representative is unwilling or unable to continue in their role.
• The period of time that the DMRO covers has passed.

It is not clear yet how this application will be made before the Courts but I will be sure to keep a close eye on this.

As of today, the DSS are open to receive applications for the new decision making supports available under the Act.

If you have any queries or wish to begin the process, please contact us on info@wolfe.ie or feel free to phone the office on 028 21177.

By Aislinn Collins Solicitor

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

April 2023 Wolfe & Co. LLP Solicitors

Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie

Tel: 028-21177, e-mail: info@wolfe.ie