Assisted Decision Making (Capacity) Act 2015
On December 17th the Assisted Decision Making (Capacity) Bill was passed by the Dáil on its last sitting before Christmas. This is the culmination of many years of hard work and struggle and, in the thick of it, was the Chair of our National Advisory Committee, Patricia Rickard-Clarke. Her contribution has been nothing short of remarkable.
Sage have published our 2nd edition of the New Times. The 2nd edition is an updated guide to the Assisted Decision Making (Capacity) Act 2015. We have developed a downloadable version which is available here.
Sage delivered Briefing Sessions on the Assisted Decision-Making (Capacity) Act 2015 to over two thousand people around Ireland in 2016. You can see the events we have planned for 2017 on our events page, or learn more about this important legislation from our briefing presentation.
Whilst every care has been taken in the preparation of this material and whilst Sage will endeavour to provide further information in relation to the ADM (Capacity) Act 2015 as and when the Act is brought into force and various Codes prepared, Sage resource material is for information only and should not be taken as an exhaustive commentary on the legislation nor should it be taken as a substitute for legal advice. Sage does not accept any liability arising from any errors or omissions.
If you have any questions around our publication or about the ADM (C) Act itself, contact email@example.com and we will be happy to assist you where possible.
People have the right to plan ahead and appoint another person or persons to make decisions for them at a future time if at that time they may not have the ability to make decisions for themselves. The Assisted Decision-Making (Capacity) Act 2015 makes provision for two separate “future planning” documents namely an Advanced Healthcare Directive which applies to healthcare matters, and/or an Enduring Power of Attorney which applies (presently) to property and social care matters.
Advanced Healthcare Directive
An Advanced Healthcare Directive (AHD) is a written document which allows a person to plan ahead by either indicating now what healthcare treatments etc they would want or not want in the future at a time when they are unable to make decisions for themselves, and/or naming a person or persons who is authorised to make those decisions for them at that time.
The purpose of an AHD is to ensure that a person is treated at all times according to their will and preferences, beliefs and values. In addition an AHD provides healthcare professions with important information about patients and the patient’s choices in relation to treatment.
AHD can be made by any person at any time over the age of 18 years, not just where a person is unwell or has a diagnosis of dementia.
Introduction to Powers of Attorney
Power of Attorney means one person (the Donor) handing over to another person (the Attorney) the right to do acts on behalf of the Donor which bind the Donor in law as if he/she had done those acts for him/herself.
In Irish law there are two distinctly different Powers of Attorney, an “Ordinary Power of Attorney”, (sometimes just called a Power of Attorney) and an “Enduring Power of Attorney” or EPA. Each type is mutually exclusive in that both cannot be validly used at the same time.
Given the importance of an Enduring Power of Attorney to an individual as a way of planning in advance for how and by whom he/she should be cared for, in circumstances when he/she might at some time in the future not be mentally capable of taking decisions concerning his/herself and his/her affairs for him/herself, Sage has provided below FAQs on Enduring Powers of Attorney.
An additional resource is the Law Society Guidelines on Enduring Powers of Attorney. The guidelines were prepared by the Law Society of Ireland for solicitors practicing in the area, it is not considered a guide for clients. You can view this document here
Person-Centred Masterclass: Understanding the Assisted Decision-Making (Capacity) Act 2015 and proposed Deprivation of Liberty legislation
In January and February 2017 Sage contributed to the UCD School of Nursing, Midwifery and Health Systems Person-Centred Masterclasses entitled: Understanding the Assisted Decision-Making (Capacity) Act 2015 and the proposed Deprivation of Liberty legislation. These masterclasses included inputs on the ADM (Capacity) Act 2015 by Mary Condell, Sage Legal Advisor, and on the proposed Deprivation of Liberty legislation by Patricia Rickard-Clarke.
You can view a video of the Masterclass in full, and download the presentations from the UCD website by clicking here
On 28th February 2017 Sage hosted a public meeting on the topic of responding to the human rights of older people and adults who may be vulnerable in the context of the new ADM (Capacity) Act 2015, proposed Deprivation of Liberty provisions in the Disability (Miscellaneous Provisions) Bill 2016, strategic developments in the area of safeguarding, and the developing role of advocacy.
The purpose of the event was to generate discussion and debate amongst a broad audience from varying perspectives on current and proposed legislative changes that will impact older people, adults who may be vulnerable and those within society who have a role in responding to and upholding their rights.
Despite the cold and wet weather approximately 200 people attended on the night and contributed to the discussions on the importance of legislation to facilitate necessary cultural changes. The event was chaired by the Hon. Ms. Justice Mary Laffoy who reflected at the end of the meeting that the evening focussed minds beyond law but noted that it is important that legislation is consistent across the board and we should be striving for that.
Patricia Rickard-Clarke addressed the audience and gave a comprehensive overview of legislation and policy in the area, and outlined why there is a need for legislation on safeguarding to protect adults who may be vulnerable, this presentation can be viewed here. This was followed by Kathryn O’Shea, the Chair of Inclusion Ireland who spoke of the need for society to change expectations for people with disabilities and adults who may be vulnerable to enable people to live a good life of their choosing, and to look at our commonalities rather than our differences. Dr. Sabina Brennan addressed the audience and spoke of the relationship of democracy to advocacy, highlighting the importance of the role of an independent advocate and called for the establishment of a National Council for Advocacy. Mervyn Taylor, Manager of Sage, provided closing remarks calling for the establishment of the Decision Support Service, highlighting that law is a fundamental bedrock for change and stating the importance of ongoing funding to ensure the continuation of independent advocacy services.
Click here to read the press statement for this event. A more detailed report from the event will be available shortly.
As with most things in life “practise makes perfect”, or to put it another way “start as you mean to go on” and so the sooner we can in life get in to the habit of doing things a particular way then the more likely we are to continue to act, and expect to be treated, in that manner even when our circumstances change.
On February 22nd 2016, Sage in conjunction with the Law Society’s Mental Health and Capacity Task Force, brought the countries brightest legal minds, members of the caring professions and other interested parties together to learn more about the ground breaking Assisted Decision Making (Capacity) Act 2015 in the Education Centre of the Law Society, Dublin.
The Hon. Mr Justice Jonathan Baker; High Court (Family Division) England and Wales and Court of Protection, from the UK, led a Masterclass on the Assisted Decision Making (Capacity) Act which was chaired by the Hon. Mr Justice Peter Kelly President of the High Court.
The Hon. Mr Justice Baker raised 7 important questions including; stressing the need for a code of practice, the need for commitment and dedicate resources, professionals to implement the legislation effectively, and the need for statutory advocates.
To learn more from this Masterclass please see extracts from the evening on the video posted below.