Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

The Senators have spoken to a wider problem that has emerged in the existing wardship system. I recognise the genuine and legitimate concerns they are raising. I understand the intention of the amendment for the reasons I am about to set out. I do not believe is not necessary because we have provision in the legislation that addresses much of what Senator Clonan said. Section 38(5) and 38(6) of the 2015 Act set out criteria for the appointment of decision-making representatives. Section 38 (5) states:

When considering the suitability of a person to be a decision-making representative for a relevant person, the court shall have regard to the following: (a) the known will and preferences of the relevant person;

(b) the desirability of preserving existing relationships within the family of the relevant person;

(c) the relationship (if any) between the relevant person and the proposed representative;

(d) the compatibility of the proposed representative and the relevant person;

(e) whether the proposed representative will be able to perform the functions to be vested in him or her;

(f) any conflict of interest.

Paragraph (e) is important in ensuring there is an assessment of the ability of the decision supporter to meet the needs of the particular relevant person. If the particular relevant person has any sort of estate that needs management, the ability of the decision supporter to meet those needs would be considered. There is more detail in section 38(6) which states:

Where the court appoints a decision-making representative to make decisions on the relevant person’s property and affairs, it shall have regard to the following: (a) the size, nature and complexity of the relevant person’s financial affairs;

(b) any professional expertise, qualification or experience required to manage the relevant person’s financial affairs;

(c) the capability of the proposed representative to manage the relevant person’s property and affairs;

(d) the financial expertise and support available to the proposed representative.

That covers and addresses, maybe in slightly different language, the important point the Senator set out.

Decision supporters would be subject to the oversight of the DSS. They have to report to the service on their management of financial assets.

Another important point in this legislation is that the decision supporter is there to assist the relevant person. If the relevant person, having been recognised as having capacity, makes bad decisions, he or she is entitled to under this legislation. That is an important issue. We are moving away from the situation where the court, through the ward of court system, knows best. The relevant person's capacity is recognised, including his or her capacity to make a bad decision. That is relevant because it is no longer a question of the decision supporter minding the relevant person's money; it is a question of the decision supporter supporting the relevant person to make the decisions that he or she believes are best even if those are decisions that he or she considers not to be financially the best investment. It is important to recognise that.