If you are keeping up to date with Aislinn’s Articles, you will no doubt be well aware of some serious concerns that have been raised over aspects of the recently commenced Assisted Decision-Making (Capacity) Act 2015.
While those concerns still remain, this week I want to draw attention to some really beneficial aspects of the 2015 Act. The 2015 Act has introduced a suite of decision support arrangements to help people who may 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
What are Decision support arrangements?
Decision support arrangements are legally recognised arrangements for people who need support to make certain decisions. This can include decisions about finances, property, employment, accommodation, healthcare and social support. A person's needs may change over time. Different levels of decision support available means that they can be changed, cancelled or replaced by another type of arrangement depending on the person's capacity needs. Capacity means your ability to make decisions. When we talk about capacity we mean your ability to make a specific decision at a specific time. Some people have the capacity to make some decisions but not others. Some people need someone to help them exercise their capacity. This may be by providing them with information or helping them to communicate.
Co-Decision-Making Agreement (CDMA)
A Co-Decision-Making Agreement (CDMA) is a document that lets you choose someone you know and trust to make certain decisions together with you. The CDMA is the second tier of support offered pursuant to the 2015 Act. I am discussing the second tier of support first as, at the time of writing, there is no clear guidance on the operation of the first tier. I will of course update this as soon as it becomes available.
In creating a CDMA, you choose which decisions you need help with. The decisions can be about your personal welfare and property and affairs. Your Co-Decision Maker (CDM) can help you to gather information and explain it to you. Together you look at the information and discuss the different options and outcomes available to you. You jointly come to a decision that respects your wishes. Your CDM can also support you to let other people know about the decision you have made together. Your CDM can help you with the decisions in your agreement in a number of ways. They can help you to access relevant information and records. This might involve contacting your bank, phone company or your doctor. They can explain complex information to you. They can also help you understand and weigh up your options. They work through the decision with you and make sure it reflects your wishes. They can support you to let other people know about the decision that has been made.
It is important that you apply to make the agreement of your own free will and that the person helping you does not pressure you or force you to make an application. It is also important to note that no one can make a CDMA for you or on your behalf. The decision to make one is yours and yours only. A Co-Decision Maker must act within the scope of the agreement. This means they can only make decisions which are specified in the agreement jointly made with you. If you make any decision specified in the agreement without them, the decision will not be valid. A CDM cannot make decisions for you or on your behalf. They must support you in the decision process. They must make decisions jointly with you which includes signing documents where needed. They cannot make decisions on your behalf and they cannot make decisions together with you which are not specified in the agreement. A CDM must respect your wishes in relation to a decision even if they disagree with you unless there is a risk of serious harm to you or another person. A CDMA can last as long as you need and can be cancelled or revoked at any time should you so wish.
It is important to think of the type of decisions you want to include in your agreement. The agreement can include decisions about your personal welfare and your property and money matters. There are some specific things you cannot put into a CDMA. These include giving away your property, money or possessions as a gift, any decision which you cannot legally make yourself and the making of a will. If you include any of these in your CDMA, they cannot be acted upon by you or your CDM. Any decision included in a CDMA must be made jointly with your CDM or else the agreement will be considered null and void. A CDM cannot receive a benefit from or become liable for a contract you are entering into. This means even though they may be signing a document with you they are not a co-applicant or joint applicant. They are not entitled to any goods or services you may be purchasing or liable for any of your payments or debts owed by you.
If you do not have a CDMA in place your family and friends can of course still help you when you are making a decision but however they may not have the legal authority to do certain things for you such as requesting information from a bank or doctor. The CDMA allows them this authority.
Functions of the Decision Support Service (DSS)
The 2015 Act establishes a Decision Support Service (DSS) within the Mental Health Commission to oversee the operation of the Act. The DSS examines all applications to register a CDMA. The DSS, after registration of your agreement, will review it after the first year and at least once every three years thereafter to ensure it is still working as it should.
The CDMA is an online form generated on the DSS website. In order to begin the process, you will have to have a Public Services Card, a MyGovID and register for the MyDSS portal. You will then have to provide your full information, your CDM’s full information and the decisions you want support with. The DSS are operating a “digital first service” however forms can be provided by hard copy upon contacting the DSS or your solicitor.
You will also have to provide supporting documents with your application which include a capacity assessment by your doctor and two character referees for your CDM.
A CDM must ask two adults who they know well to submit references as to their personal character. At least one of the character referees must be from a person who is not a close family member. The CDM references must each complete and sign a form confirming their relationship to the CDM, how long they have known them and they must provide information about the personal character of the proposed CDM that makes them believe they are a suitable person to perform this role.
The documents to be signed by you and you CDM must then be signed and witnessed by two witnesses, at the same place and at the same time.
The DSS will review your agreement after one year and as part of the review you must provide an updated statement by a doctor or other health care professional. The DSS requests that this statement, ideally is from the same doctor as for your confirmed your initial agreement.
Your CDM is required to submit an annual report to the DSS within 12 months of the agreement being registered. The annual report relates to activities they have undertaken as your CDM and any significant decision they made with you and any expenses being claimed by them. Your CDM cannot receive payment for supporting you but can be reimbursed for any reasonable cost they incurred. This will be paid from your assets.
You can change your CDMA once it has been registered with the DSS for more than 6 months and both you and the CDM must agree to the changes. If it is a minor change, you simply notify the DSS but if it is a substantial change, then you must complete it in writing and essentially cover the same initial steps.
If you want to cancel the CDMA, this can be done by way of revocation. You can end all or part of a CDMA after registration. Again it must be cancelled in writing. There is a specific form to be signed by you which must be signed and witnessed by two witnesses.
Future-proofing our personal affairs is something that we all need to think about. Wolfe & Co LLP are happy to assist anyone who feels that they may need support, either now or in the future.
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.
June 2023 Wolfe & Co. LLP Solicitors
Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie
Tel: 028-21177, e-mail: firstname.lastname@example.org