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Caught in the act

The Assisted Decision-Making (Capacity) (Amendment) Bill 2022 is set to introduce important amendments to the 2015 act. Eimear Burke, Hannah Unger and Ciara Dowd BL spotlight some of the more significant changes.

The full commencement of the Assisted Decision-Making (Capacity) Act 2015 has been delayed until early 2023. In part, this is due to delays in progressing the Assisted Decision-Making (Capacity) (Amendment) Bill 2022, which makes many important changes to the 2015 act.

Some of the more important amendments in the 2022 bill relate to the powers of the director of the Decision Support Service (DSS) and how practitioners might interact with those. In advance of the expected 2023 commencement of the 2015 act’s regime, it will be important for solicitors to understand its regulatory framework, as they will no doubt be coming into contact with persons with capacity issues who may require an intervention under the 2015 act framework.

Generally, the amendments in the 2022 bill appear aimed at empowering the director of the DSS. These amendments have the dual advantage of (a) preserving authority with the expert body, and (b) reducing court applications on an already overburdened courts system.

Decision supports

The Decision Support Service was established by the 2015 act to, among other things, regulate and register decision support arrangements, supervise the actions of decision supporters, and investigate complaints made against them under the 2015 act.

Decision supporters include decision-making assistants (part 3 of the 2015 act), co-decision-makers (part 4), decision-making representatives (part 5), attorneys (part 7), and healthcare representatives (part 8). Decision supports under the act may be availed of by ‘relevant persons’ – that is, a person whose capacity is in question or may shortly be in question in respect of one or more matters, or a person who lacks capacity in respect of one or more matters.

Reporting requirements

Certain decision supporters under the 2015 act will be required to report to the DSS on their activities. Where there is a failure to report or the reporting is incomplete, or gives rise to concerns, the director may take action against the decision supporter.

Similarly, an interested party may complain to the director about a decision supporter, and the director may then investigate the complaint. The director may also choose to investigate a decision supporter at her own initiative.

Complaints may arise on the basis that, among other things, a decision supporter is acting outside of the scope of the agreement or court order, or that a decision supporter is unsuitable, or that the decision support is not appropriate to the capacity needs of the relevant person, or that the decision supporter is not acting in line with the guiding principles of the act.

As part of her investigation, the director may commission a visitor or meet with the person being supported in their decision-making, summon witnesses, and may take evidence under oath.

Under the 2015 act, where the director deems a complaint to be well founded, she may apply to the Circuit Court for a determination in respect of the decision supporter, which may, in turn, order that decision supporter to no longer act in that capacity in relation to the relevant person.

While readers familiar with the 2015 act may be aware of the relevant investigations and complaints processes, the 2022 bill will make important amendments that practitioners in the area should have regard to ahead of the commencement of the regime.

Director determinations

A number of the amendments in the bill will give the director the power to make determinations, in respect of which the director has to apply to court under the 2015 act, as enacted.

For example, the amendment to section 24(3)(ii) would mean that the director can make the determination to refuse to register a co-decision-making agreement if she has concerns. Similarly, the amendments to sections 27(4)(4A) and 75(7) would empower to the director to remove co-decision-makers and attorneys due to incomplete reporting.

Practitioners should be aware that interested parties will be entitled to appeal these director determinations. Nevertheless, increasing the director’s power in this respect represents good regulatory practice. The DSS will have expertise to deal with these matters. This will reduce the burden on the courts, but the courts will retain their oversight through appeals.

A further series of amendments in the bill empowering the director are those relating to the informal resolution of disputes where complaints against decision supporters are deemed well-founded. This process involves the provision of clarification on the role of the decision supporter by the director to the supporter, presumably in a scenario where, for example, the director believes a family members who is a supporter has been acting in good faith, but may not understand the limits of their role.

In many cases, this should avoid disruption and enable the already established decision-support arrangement to continue, as well as help avoid recourse to the courts for determinations. This, again, represents good regulatory practice by encouraging an exhaustion of remedies before entering adversarial litigation and burdening the courts.

Temporary prohibition orders

A further proposed amendment to be aware of would be the addition of section 96A. This would give the director power to seek orders from the Circuit Court to temporarily prohibit a decision supporter from acting in that capacity, while the DSS investigation is ongoing. The court will have to be satisfied that there is an immediate risk of harm to the relevant person, or the property of the relevant person, before making such an order.

This would provide the director with an important and necessary power to act to protect the relevant person and/or their assets.

New registration system

Practitioners should also be aware of the proposed new two-stage system for registration and notification of enduring powers of attorney (EPA) contained in the 2022 bill. This proposal will give more oversight to the DSS in respect of EPAs.

The new system will have donors register the document containing the EPA with the DSS on execution. The DSS will then review the EPA and identify any issues of compliance. This will give more certainty to donors that the EPA they have executed is fit for purpose. This will also remove the risk that the EPA will be lost, and should ensure that issues are resolved when the donor has capacity and, therefore, reduce subsequent litigation.

The 2022 bill contains many practical proposed amendments that accord with common sense and good regulatory practice. Empowering the DSS to resolve disputes and make determinations where appropriate, with appeals to the Circuit Court, aligns power with expertise, while maintaining objective oversight.

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