Dermot Ahern (Louth, Fianna Fail)

The mental capacity Bill, which the Government's legislation programme indicates is due for publication in this session, represents the Government's policy in relation to reform of the wards of courts system. Details of the Bill were published in the form of heads in September 2008 and they may be accessed on my Department's website. The Office of Wards of Court will be replaced by the establishment of the office of the public guardian. It is intended that the Bill will provide a modern statutory framework governing decision-making on behalf of adult persons who lack capacity. The legislation will contain guiding principles to assist carers as well as the court in making decisions on behalf of the person. The statutory guiding principles will require that any act done or decision made on behalf of the person must be in that person's best interests.

The Bill will establish that there is a presumption of capacity and that no intervention in the person's decision-making will take place unless it is necessary having regard to the individual needs and circumstances of the person. A person shall not be treated as unable to make a decision unless all practicable steps to help them make a decision have been taken without success. The Bill further provides that any act done or decision made under it must be done or made in a way which is the least restrictive of a person's rights and freedoms. The Bill will create a new role of personal guardian. Where a person has been found to lack capacity, a personal guardian can be appointed by the court to make decisions concerning his or her personal welfare or property and affairs. The primary function of the office of public guardian will be to supervise and monitor the exercise of duties and responsibilities by court appointed personal guardians.

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