Proposed changes in the law on legal capacity
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Transcript of Proposed changes in the law on legal capacity
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Proposed changes in the law on legal capacityDarius Whelan, School of Law, UCCBrothers of Charity conference, 22 Oct. 2015
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Assisted Decision-Making (Capacity) Bill 2013
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4Picture from specialolympics.ie
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Capacity means decision-making capacity
Personal welfare or financial issuesOperate bank account, spend money, decide where to live, make medical decision
Capacity means capacity at time decision is made You lack capacity if you are unable to
Understand info relevant to decisionRetain that informationUse/ weigh that information, orCommunicate your decision, perhaps with assistive technology
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It is presumed you have capacity All practicable steps must be taken
to help you to make decisionMaking an unwise decision does not
make you unable to make decision
Intervener must give effect to your will and preferences [Example of intervener – person helping you to make a decision]
Guiding Principles (examples)
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[“Best interests” will no longer apply]
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• You can appoint a Decision-Making Assistant (DMA) to assist you in making decisions
You must be over 18 You can have two DMAs
• You must consider your capacity is in question or may shortly be in question
• DMA can assist you in obtaining information; explain information; find out your will and preferences; ensure your decisions are implemented
• Notify office of Director of Decision Support Service
Decision-making assistant (DMA)
8Photo by Joshua Earle from Unsplash CC0
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You can appoint a Co-Decision Maker (CDM) to jointly make decisions with you
You must be over 18 CDM must be trusted relative/ friend Circuit Court approves the co-decision-
making agreement
Co-Decision Maker (CDM)
9Picture – CourtsService.ie
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Circuit Court appoints DMR for personPerson lacks capacity to make decisions, even with CDM
DMR may make decisionsThis is substitute decision-making Supervised by office of Decision Support Service
Decision-Making Representative (DMR)
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Bill is not yet law.Once passed, more detailed guidance and training will be necessary.