The Conveyancing Committee has received queries from practitioners regarding the Assisted Decision Making (Capacity) Act 2015 (the Act) and its impact on conveyancing practice.

About the Act

The Act establishes a new legal framework for supported decision making in Ireland and came into full effect on the 26 April 2023. It has abolished and replaced the Wards of Court System going forward.

Practitioners should be aware of and understand the distinction between the various types of support arrangements for people who may face challenges when making certain decisions, namely: Decision Making Assistance, Co-Decision Making Agreements and the appointment of a Court Appointed Decision Making Representative (the Order). This practice note deals only with the latter two supports. Practitioners should also be aware that the Act affects Enduring Powers of Attorney but those impacts are not dealt with as part of this practice note.

The Conveyancing Committee and the Mental Health and Capacity Taskforce are engaging with the Decision Support Service (DSS), Tailte Eireann and the Revenue Commissioners in order to highlight the issues and queries that will arise in practice during the conveyance process and agree the procedures that should be followed and will update the profession in due course.

Guidance on transactions

The current advice to practitioners dealing with purchasers and vendors in transactions relating to property is as follows:      

1. The vendor’s solicitor should establish at the outset of the transaction and prior to issuing contacts for sale, whether any Co-Decision Making Agreement (Agreement) is in existence or any Order of Court appointing a Decision-Making Representative (DMR) has been made (Order) and the vendor’s solicitor should ascertain what impact, if any, such Agreement or Order may have on the transaction. If any Agreement or Order exists, the vendor’s solicitor should ensure the Agreement or Order has been registered with the DSS and the vendor’s solicitor should put the purchaser’s solicitor on notice of any such Agreement or Order, if appropriate. This should be dealt with by way of an appropriately drafted special condition in the Contract for Sale.
2. The purchaser’s solicitor, once on notice of any such Agreement or Order, should request a copy of the Agreement or Order as registered in the DSS together with proof of that. While the DMR has authority to act on foot of the perfected Order before it is registered with the DSS, the committee has been advised by the DSS that it is occasionally necessary to seek amendment to Orders so that they may be registered.  It is, therefore, prudent to obtain the copy of the Order as registered in the DSS.  An agreement will not be valid unless registered with the DSS, so that only a copy of the Agreement as registered may be relied upon.
3. The purchaser’s solicitor should check the terms of any Court Order to confirm that the Decision-Making Representative has the power to enter into an agreement for the sale of the property and also ascertain if the Order is subject to review by the Court at a future date. If the Order stipulates that a review must be undertaken at a future date, the terms and timing of the review should be carefully considered, and the purchaser’s solicitor should seek a Declaration on closing from the Vendor to confirm that the Order has not been varied or revoked up to and including the date of completion. The Contract for Sale and the Deed of Assurance should be executed by the DMR in accordance with the terms of the Order.   As the Decision-Making Representative can only aver to matters within their own knowledge, care should be taken in the drafting of Declarations for completion.
4. In relation to Co-Decision Making Agreements, the Contract for Sale, Deed of Assurance and all other documentation in connection with the transaction should be executed by the Vendor, who is being supported by the Co-Decision-Maker in the normal manner. In addition, the Co-Decision-Maker, should join in the Contract for Sale, the Deed of Assurance and all other documentation other than Declarations, to confirm that their assistance has been sought and provided in accordance with the terms of the Agreement.

Practitioners should be aware that the DSS has issued a number of Codes of Practice for practitioners when they are interacting with a person who requires support in making decisions which can be found on the Decision Support Service website. 

The Committee will issue further guidance to practitioners following its engagement with the DSS and other relevant parties in due course if appropriate.