Michael Collins (Cork South West, Independent) | Oireachtas source

The original Assisted Decision-Making (Capacity) Act 2015 was signed into law on 30 December 2015. The Act applies to everyone and is relevant to all health and social care services. It relates to supporting decision-making and maximising a person’s capacity to make decisions. However, it will not be commenced until June 2022, almost seven years after it was signed into law, because the systems required to implement it were not put in place.

We all know people who have had an accident, a stroke or a heart attack. They may have had no plan in place for a decision to be made on their behalf and have had no one appointed to make decisions for them in case they became unable to communicate. If they do have someone appointed, that person will know the person’s wishes and what he or she would have liked to be carried out after having been struck down with some serious illness. In some cases, however, families do not want the hassle of having to help take care of the family member. Moreover, there can be financial reasons the family would not like the relative to be kept alive, and they might not want any of their relative's money going to waste. Instead, in some cases, the family would prefer to make the decision to end the relative's life. That does not bode well for the member who has been incapacitated. Sometimes it falls on friends to advise the family of the person who has been incapacitated, which in itself can cause friction and unnecessary bitterness.

Another issue arises where a will has been made and the incapacitated person has been coerced into signing one that is, in fact, at odds with what the person wants. If an incapacitated person would rather be in a certain hospital, nursing home or community hospital, that too should be taken into consideration. People who have been left in an incapacitated state are extremely vulnerable to the immediate people around them, and they must at all times be protected and their wishes must always be the priority. Over the years, I have heard of and seen many elderly people being coerced into making wills and then, once everything has been signed over, no one remains to take care of them. I have heard of people taking farms and land from incapacitated people and also of families wishing their incapacitated family member were dead because the cost was too much. It was not that the family were using any of their own money but that they did not want the incapacitated person's money to be spent on any medical care such as a nursing home or a community hospital.

Today, if a person loses capacity, such as by acquiring a brain injury, the HSE could apply to have that person made a ward of court. Two committees would then be appointed, one to look after the person and the other to look after his or her property, which will often contain a compensation award. Thankfully, under the Bill, it will be possible for a person to specify what decisions he or she would like to be made about his or her person, property or both in the event of losing capacity via an enduring power of attorney, EPA, and an advance healthcare directive, AHD. In the event a person does not have an EPA or an AHD and loses the capacity to make decisions, supports can be put in place, depending on the severity of the capacity loss and the degree of support needed. A decision-making assistant, a co-decision maker or a decision-making representative could be appointed. That person may be, but does not have to be, a next of kin. It will be done via a court application to be made a decision-making representative, or by signing an agreement with the appointer to be made a decision-making assistant or co-decision maker, and then registering that agreement with the decision support service, DSS. If the relevant person does not have anyone who could or would step in to one of these roles, the courts can make a decision for the relevant person or choose a decision-making representative from persons nominated by the director of the DSS.

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