The Assisted Decision-Making (Capacity) Act 2015 represents the most significant reform of capacity law in Ireland in generations. It has profound implications for powers of attorney, replacing the old “all or nothing” approach to capacity with a graduated, rights-based framework. This guide explains the key changes and their practical impact.
What the Act Does
The 2015 Act replaces the wards of court system (dating from the Lunacy Regulation (Ireland) Act 1871) with a modern framework based on the principle that every person has the right to make decisions for themselves, with support if needed. It was commenced in phases, with key provisions taking effect from 26 April 2023.
The Guiding Principles
The Act establishes fundamental principles:
- A person is presumed to have capacity unless the contrary is established
- A person is not to be treated as unable to make a decision merely because they make an unwise decision
- No intervention is to be made unless it is necessary and no less restrictive measure is available
- Any intervention must be proportionate
- Due regard must be given to the person’s will and preferences
Impact on Enduring Powers of Attorney
The Act introduces significant changes to the EPA regime established by the Powers of Attorney Act 1996:
- Existing EPAs: EPAs validly created under the 1996 Act remain valid and can still be registered and used
- New arrangements: The Act introduces the Enduring Power of Attorney under Part 7, with updated requirements and safeguards
- Decision Support Service (DSS): The newly established DSS oversees the operation of the new framework, including registration of enduring powers
New Decision-Making Arrangements
The Act creates a tiered system of decision-making support:
- Decision-making assistance agreement: For persons who need help understanding information to make decisions
- Co-decision-making agreement: For persons who can make decisions jointly with a trusted person
- Decision-making representation order: Court-appointed representative for persons who lack capacity even with support
- Enduring power of attorney: For persons planning ahead while they still have capacity
The Decision Support Service
The DSS, established under the Act, is responsible for:
- Registering enduring powers of attorney
- Supervising decision-making arrangements
- Maintaining a public register
- Providing information and guidance
- Investigating complaints
Implications for Notarial Practice
For notaries public, the Act reinforces the obligation to assess capacity when performing notarial acts. When notarising documents such as powers of attorney, the notary must be satisfied that the person appearing has the requisite capacity to understand and execute the document. The Act’s functional approach to capacity — assessing capacity in relation to the specific decision rather than globally — is particularly relevant.
The Functional Approach to Capacity
One of the most significant changes introduced by the 2015 Act is the functional approach to capacity. Under the old law, a person was either “competent” or “incompetent” — a binary determination. The 2015 Act recognises that capacity is:
- Decision-specific: A person may have capacity for some decisions but not others. For example, they may be able to decide where to live but not manage complex financial investments
- Time-specific: Capacity can fluctuate. A person may have capacity at some times but not others
- Not dependent on diagnosis: A particular medical condition does not automatically mean a lack of capacity
This functional approach has direct implications for notarial practice. When a notary assesses whether a person has capacity to execute a power of attorney or statutory declaration, they must consider capacity in relation to the specific document and decision, not make a global assessment.
Codes of Practice
The Act provides for the development of codes of practice to guide those involved in decision-making support. These codes address matters such as:
- How to assess capacity
- How to support a person in making decisions
- The responsibilities of decision-making representatives
- How to handle conflicts of interest
These codes are relevant not only to healthcare professionals and social workers but also to legal practitioners, including notaries, who must assess capacity as part of their professional obligations.
Transitional Arrangements
- EPAs created under the 1996 Act before the commencement of the new provisions remain valid
- EPAs already registered continue to operate under the 1996 Act regime
- New EPAs created after commencement must comply with the 2015 Act requirements
Frequently Asked Questions
Does the 2015 Act replace the Powers of Attorney Act 1996?
Not entirely. The 1996 Act remains in force for many purposes. The 2015 Act introduces a new framework that supplements and in some areas replaces the 1996 provisions, particularly regarding EPAs and capacity assessment.
Are existing EPAs still valid?
Yes. EPAs validly created under the 1996 Act remain valid and enforceable.
What is the Decision Support Service?
The DSS is the State body established under the 2015 Act to oversee the new decision-making support framework, including registration of enduring powers of attorney.
Expert Advice on Powers of Attorney
Hugh Phelan can advise on all aspects of powers of attorney under both the 1996 and 2015 Acts. Contact his office at 021-489-7134 or email info@phelansolicitors.com.