Michael Healy-Rae (Kerry, Independent) | Oireachtas source

I am grateful for the opportunity to speak on this strong and weighty legislation that is set to modernise a whole area of law for a very vulnerable sector of our society.

When I talk about people who might be affected by this I like to refer to them as vulnerable or special people who deserve every protection from the State and assistance to their families in protecting them. We heard earlier a very eminent barrister talking about antiquated legislation, which goes back 156 years, that legal people must still refer to when dealing with people's business. That is outrageous. What was right and proper language and terminology to use - I put a question mark on that - 156 years ago could not be said by anybody to be appropriate for use by people going into court today to deal with legal situations. Surely, 156 years later, it is time we as legislators got ourselves in gear and put things in order.

This legislation places the person at the centre with a move from the "best interests" to the "will and preference". It provides for a tiered approach that will move to assisting from making decisions on a person's behalf. Ultimately, the associated Assisted Decision-Making (Capacity) Act is very significant capacity legislation that addresses the long-outdated area of law called wardship. We are all well aware of wards of court and what that means but updating that, modernising it and ensuring it is fit for purpose is a very important role in which we must all play our part and support the Government in doing.

The Act sets out in detail how this whole process of inclusion should unfold and recognises the situations where a person can make decisions for him or herself but may also require support from family members or other trusted individuals who ultimately would be best charged to take care of that special person's needs. A person in this situation can enter a decision-making assistance agreement. This allows individuals to appoint a trusted person as an assistant, be that a family member or a friend. The assistant would help by giving advice and support to the appointer when making decisions about his or her welfare. These decisions would be seen as the appointer's decisions. Assistants would help in expressing the interests of the appointer and would ensure the decisions were implemented. The autonomy of the appointer is paramount.

There is another aspect to this. It is easy for us to be smart when the horse has bolted. I refer to the issue of people giving power to others when they are making wills and dealing with the ultimate decisions everyone must make at some stage in their lives. Again, Government should be always encouraging people. We see public advertisements being taken out and there is the Law Society and people like that. Rightly, these encourage people to make a will. People put an awful lot of effort into living but they do not think much about the ultimate act every one of us is going to do in this world, and that is the act of dying. We want to ensure people at that stage have things in order. Having given a person the power of attorney in situations like that would help with limited capacity, etc. Every one of us in our role as public representatives and through our clinics has seen what I call the horror stories. Those are where a perfectly healthy man, woman or younger person becomes incapacitated through accident or illness and, to be blunt about it, everything is in an absolute and complete mess because no systems are put in place. It might be the simplest thing in the world like paying a bill but it may be that bill cannot be paid because there is a bank account with one person's name on it and nothing can be done about the very basics of running the house or running the show because the money is locked up and no systems were put in place. I strongly advise, therefore, as would any person who is thinking straight about these matters, that when a person is making a will and dealing with the future, he or she should also think seriously about giving power of attorney to one or two persons who would work in his or her best interests.

The 2015 Act aimed to introduce a new protection regime and new legal framework for supported decision-making for vulnerable adults with a rights-based approach to decision-making capacity. We know what is going to happen with the current regime. Wardship will remain in place until the Bill is enacted into law and will continue to exist for a further period of three years. We must ensure we have everything done right on this and that we all support each other in this very important matter.

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