The Assisted Decision Making (Capacity) Act 2015 was signed into law on 30 December 2015.  Its underlying premise is that everyone is presumed to be able to decide for themselves unless the opposite is shown.  Where this is shown, the Act sets out ways to support people who lack capacity to make decisions. It moves away from a “best interests” approach to a “rights-based” approach to decision making with respect for the wishes and preferences of the person involved.

Having lain dormant for nearly six years it looks as if the Act will finally come into force in 2022.  The Decision Support Service (“DSS”) established under the Act has recently advertised for suitable applicants for a new panel of decision-making representatives.

Once the Act is in force the old Ward of Court system will be replaced by a system of graduated supports for decision making with a three tier system of decision supporters:

  • Decision Making Assistance A person can formally appoint a decision making assistant, who is supervised by the DSS. The person retains ultimate decision making responsibility.
  • Co-Decision Maker In this scenario, a person can appoint someone to make decisions on their behalf on a joint responsibility basis. The co-decision maker is also subject to the supervision of the DSS.
  • Decision Making Representative The Circuit Court can appoint a representative to make certain decisions on behalf of persons who are unable to make such decisions on their own behalf.

The Act introduces major changes which legal, health and other practitioners have broadly welcomed seeing the Act as vehicle which will help ensure that those under their care who lack capacity can access the decision making support most appropriate to them.

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