חומר רקע

Assisted Decision-Making (Capacity) Bill 2013 Overview The Assisted Decision-Making (Capacity) Bill 2013 proposes a modern statutory framework to support decision-making by adults who have difficulty in making decisions without help. It will repeal the Marriage of Lunatics Act 1811 and cause the Lunacy Regulation (Ireland) Act 1871 to cease to have effect. The Bill provides for the replacement of the adult Wards of Court system by a less intrusive system. This system offers a continuum of options to support people in maximising their decision-making capability. Guiding Principles The Bill sets out guiding principles that are intended to safeguard the autonomy and dignity of the person with impaired capacity. They apply to each and every intervention, including by the court, that is made under the proposed legislation. • there is a presumption of decision-making capacity unless the contrary is shown. • no intervention will take place unless it is necessary. • a person will be treated as unable to make a decision only where all practicable steps to help that person to make a decision have been unsuccessful. • any act done or decision made under the Bill must be done or made in a way which is least restrictive of a person’s rights and freedoms. • any act done or decision made under the Bill in support or on behalf of a person with impaired capacity must give effect to the person’s will and preferences. Capacity Assessment The Bill proposes to change the law from the current all or nothing status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that s/he also lacks capacity in another matter. The Bill recognises that capacity can fluctuate in certain cases. The Circuit Court will have jurisdiction for assessing the person’s decision-making capacity. It can use expert reports to assist it in assessing the person’s capacity and in deciding what type of capacity declarations that it should make. There are two types of declaration that the court may make: firstly, that a person lacks capacity to make a decision unless s/he has a co-decision-maker to assist him or her; and secondly, that a person lacks capacity to make a decision even if s/he has a co-decision-maker to assist him or her. Decision-Making Support Options The Bill proposes three types of decision-making support options to respond to the range of support needs that people may have in relation to decision-making capacity. Assisted decision-making: a person may appoint a decision-making assistant – typically a family member or carer – through a formal decision-making assistance agreement to support him or her to access information or to understand and to make and express decisions. Decision-making responsibility remains with the person. The Minister will make Regulations to specify the content of decision-making assistance agreements. Co-decision-making: a person can appoint a trusted family member or friend as a co-decision-maker to make decisions jointly with him or her under a co-decision-making agreement approved by the Circuit Court. A co-decision-maker will help to access and explain information relevant to a decision. The co-decision-maker will also help the person to make and express a decision. A co-decision-maker cannot oppose a decision made by the person where it is reasonable and will not cause harm to another person. The co-decision-maker will be supervised by the Office of the Public Guardian. Decision-making representative: For the small minority of people who are not able to make decisions even with help, the Bill provides for the Circuit Court to appoint a decision-making representative. A decision-making representative will make decisions on behalf of the person but must abide by the guiding principles and must reflect the person’s will and preferences where possible. The functions of decision-making representatives will be as limited in scope and duration as is reasonably practicable. The decision-making representative will be supervised by the Office of the Public Guardian. Enduring Powers of Attorney Under the Powers of Attorney Act 1996, a person can create an enduring power of attorney appointing an attorney to make decisions on his or her behalf in relation to financial and business affairs and personal care. The Bill will expand these powers to include health care matters. It will require attorneys to abide by the guiding principles. The Bill will require attorneys to be subject to supervision by the Office of the Public Guardian which will also have the role of registering enduring powers of attorney. Informal decision-making The Bill, recognising that informal assistance takes place on a daily basis, provides protection from liability for informal decision-makers in relation to personal welfare and healthcare decisions made on behalf of a person with impaired capacity where such decisions are necessary and no formal decision-making arrangements are in place. Informal decision-makers are bound by the guiding principles. Office of Public Guardian An Office of Public Guardian (OPG) will be set up within the Courts Service to replace the Wards of Court Office to manage capacity-related matters for adults. The OPG will supervise and handle complaints against decision-making assistants as well as against the co-decision makers, decision-making representatives and attorneys of enduring powers appointed by the court. It will also prepare codes of practice for specific groups and will promote awareness of the legislation among the general public. Current wards of court Each ward will be reviewed in accordance with the new system. A ward who is found to have capacity will be discharged from wardship. A ward who continues to have capacity needs will be offered the support option most appropriate to his or her needs. Role of Courts The Bill provides that the Circuit Court will have jurisdiction on most issues arising under this legislation. The specialist judges provided for in the Personal Insolvency Act 2012 will undertake this work. The High Court will continue to have jurisdiction in relation to enduring powers of attorney and matters relating to non-therapeutic sterilisation, withdrawal of artificial life-sustaining treatment and organ donation.