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Act will take a functional approach to capacity

The Law Society fought hard for a transition period to be inserted into the Assisted Decision Making (Capacity) Act 2015, Aine Hynes SC (St Johns Solicitors) said at a UCD Sutherland School of Law conference on public law (14 June).

The Law Society's Geoffrey Shannon SC, who chaired the session, said that the absence of such a transitional provision had the potential to cause disruption.

The intention of the legislation is to abolish the wards of court system, Aine Hynes SC said.

It also reflects a societal shift from hiding our vulnerable citizens away to including them as far as possible, she added.

Registered enduring powers of attorney are also now permitted to be updated, after constitutional input from the Law Society, she said.

“Any legislation should be a living instrument,” said Hynes.

The idea of functional capacity is very important in the act.

Autonomy

“The purpose behind the legislation is not for us to make decisions for other people, in their best interests, but for us to try and maximize a person's ability to make their own decisions, regardless of disability.

“It is about trying to maximize a person's autonomy,” she explained.

During the wait for the 2015 bill to come into force, there has been a sea change in how the wardship system has been operating in court, as those who practise in the area will know, she said.

Many tests are now applied in assessing capacity and in determining what the person wants, the senior counsel noted, with the person often appearing in court and represented by a guardian at litem, who tends to be a solicitor, Hynes noted.

“That's obviously very helpful as the solicitor can attend court to present the case as well as being the guardian ad litem,” she said.

Voice heard

“The person's voice is heard,” she said.

While awaiting the legislation, practitioners have done their very best to operate the current legislation,  first and foremost cognisant of constitutional rights, and fair process, she said.

Aine Hynes SC said that she believed that the 1871 act was never fully utilised because it had a framework of potential benefits which were not put into practice.

“The new legislation makes it very, very clear, that you cannot make a finding that a person has a blanket inability to understand their affairs,” she said.

The courts are already applying a functional approach to capacity assessments in the determination of whether a person is of unsound mind. Case law has shown that a person may have a psychiatric disorder but has testamentary capacity, and case law has shown that a person may have the capacity to marry but not have capacity to make a will, the senior counsel added.

The act frames the idea that a person with a disability, or diminished capacity, should be supported in their decision-making.

That is made “incredibly clear”, she said, not least in the words “assisted decision-making” in the title of the act.

Jurisdiction to seek declarations is moving from the High Court to the Circuit Court, and it is anticipated there will be an increase in applications before the courts, she concluded.