Chris Andrews (Sinn Fein)
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The Minister of State has five minutes. I ask that contributors keep to their allotted time so it does not eat into other people's time at the end.

Victor Boyhan (Independent)
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Absolutely.

Chris Andrews (Sinn Fein)
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We know who is guilty of that.

Emer Higgins (Dublin Mid West, Fine Gael)
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The last time I was here I gave some of my time to Members, so I look forward to collaborating.

I am pleased to have the opportunity to present the Assisted Decision-Making (Capacity) (Amendment) Bill 2026 to Seanad Éireann following its passage through the Dáil. This Bill is urgent legislation intended to ensure legal certainty for wards of court who are moving to a decision-making process as set out in the Assisted Decision-Making (Capacity) Act 2015. In that regard I very much appreciate the co-operation of the Seanad in allowing all Stages to take place today, which I know Senators are doing in recognition of the need to progress this Bill in as timely a fashion as possible, and I look forward to having the opportunity today to listen to their views and concerns.

The Assisted Decision-Making (Capacity) Act is hugely important legislation which transforms how people are supported where they may not have capacity. The Act prioritises the specific needs and wishes of the individual and it represents an important milestone in bringing Ireland into closer compliance with the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD.

The Assisted Decision-Making (Capacity) Act 2015 replaced the wards of court system with a new rights-based model for appointing tiered decision support arrangements. Since the commencement of the Act in 2023, wards of court have been moving out of wardship. To the end of February, 391 wards have been fully discharged but some 1,000 remain in wardship awaiting discharge. That is what brings us to today.

Under section 55(1) of the Act, the High Court - or wardship court as it is referred to under the Act - is required to make a capacity declaration in respect of every adult ward of court.As it currently stands, these capacity declarations must all be made by the statutory deadline of 26 April this year. This capacity declaration is a key step in the discharge from wardship process and it requires the person carrying out a capacity assessment to have met the ward and made a report to the court. The 2015 Act does not provide for a situation where a capacity declaration will not have been made in respect of adult wards within the timeframe allowed. Urgent legislative amendments are required, therefore, to avoid legal uncertainty for the large number of wards who will not receive a capacity declaration before the deadline, which could create complications with important matters such as their care and treatment, provision of services and placement of people in facilities also. The Bill aims to ensure that the transition from wardship is done in a fair and orderly manner, and to provide for as much legal certainty as possible in individual wardship cases.

I will now turn to the detail of the Bill. It is divided into two sections and I will outline its key provisions. The Bill amends the Assisted Decision-Making (Capacity) Act 2015 to enable the wardship court to extend, in certain circumstances, the time period for making a capacity declaration under section 55(1) of the 2015 Act. Section 1 of the Bill amends section 54 of the 2015 Act by the insertion of two new subsections to give the wardship court the discretion to extend the time periods set out in section 54(2) or section 54(3) for making a capacity declaration under section 55(1) in individual wardship cases in certain circumstances.

The first new subsection, 54(2A) provides for an extension for the time period set out in section 54(2) for making a capacity declaration under section 55(1) in relation to an adult ward in certain circumstances. This subsection will allow for an extension for such period as the wardship court considers necessary and proportionate in the circumstances where the court is satisfied that good reason has been shown that the statutory deadline of 26 April 2026 will not be met, and where it is also in the interests of justice to grant the extension. Subsection 54(2A) will also allow for a further extension in exceptional circumstances, provided that a further extension is also in the interests of justice. The outer limit for any extension of time will be 18 months, or until 25 October 2027, whichever is the earlier.

The second new subsection, subsection 54(3A), provides for an extension to the timeline set out in section 54(3) for making a capacity declaration, in certain circumstances, in relation to wards who reach the age of 18 after 26 October 2025. This subsection will allow for an extension for such period as the wardship court considers necessary and proportionate in the circumstances where the court is satisfied that good reason has been shown that the statutory deadline for making a capacity declaration will not be met in an individual case, and where it is also in the interests of justice to grant the extension. A further extension will be permitted in exceptional circumstances, provided that this is also in the interests of justice. Again, the outer limit for any extension of time in respect of wards who reach the age of 18 after 26 October 2025 will be 18 months. Section 2 of this Bill is a standard provision which sets out the Short Title.

Cathal Byrne (Fine Gael)
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The Minister of State is most welcome and I welcome the opportunity to make a short contribution on Second Stage of this legislation. About ten or 11 years ago, I was a law student while this legislation was being introduced. I remember hearing in lectures about the background to this legislation and the reason it was so important that we moved away from the previous system, which had operated in Ireland from 1871 to 2015. What we have before us is legislation that will have a profound impact on the lives of 1,400 people, perhaps even more than that, out in the community, as well as on their families and loved ones, the people they need who have cared for them over the lives. These are people who have lost capacity to make fundamental decisions about their own well-being, their financial affairs, their social life, who they should engage with, as well as healthcare decisions. These are some of the most fundamental decisions that anybody can make about their own lives. That is what is at stake here. It is important that when we are discussing this legislation, we look at it in its entirety. There are issues with the capacity Act of 2015. As a solicitor, my practice has made applications to the courts on behalf of some of these people. I have seen first-hand and engaged directly with people who have had difficulties with the legislation as it currently exists, particularly around assisted decision-making applications to the courts, the length of time the courts are taking to process those applications, the number of stakeholders involved in the applications. My experience is that while each one of these wards who is being discharged is entitled to legal aid, and they do have legal representation, the reality is that very few lawyers, solicitors and barristers are accepting as clients wards of court or who are taking on the legal aid certificates that they have. That has meant their offices are swamped. It is taking an inordinate length of time to process those applications through their offices, through no fault of their own, but also because the courts themselves, given the weight and gravity of these decisions, are reluctant to make decisions as swiftly as perhaps would happen in other ranges of court applications. It is important that, in the extension of time that we have here out to October 2027, that we look at the real reasons as to why some of these applications are taking so long, outside of what is outlined by the review that was done. That review is saying that some of the wards are reluctant, it is a new model and they may not want to be the first engagers but want to see how others are getting on and they will respond. I actually think there is an issue with access to legal representation for wards of court in this situation because of how few practices are engaging in this whole area. Perhaps that needs to be looked at properly.

I do think it is important this legislation passes. The Fine Gael group is certainly supportive of it. Later on, we will have an opportunity to discuss the enduring powers of attorney. There are amendments before that. I urge the Minister of State to take a real look at the enduring powers of attorney model that we have brought in under the 2015 legislation. I do not think it is fully working the way it was envisaged. It may need a review. Ultimately in the forefront of our minds we have to have the 1,400 wards of court, their families and the people who care for them as we pass this emergency legislation.

Michael McDowell (Independent)
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I welcome the Minister of State to the House and congratulate her on her appointment. Following on from the last contribution, undoubtedly the 2015 Act was well intentioned, modernising and getting rid of the stigma of lunacy and the like that existed under Victorian wards of court legislation. I understand all of that. I also understand that it introduced a tiered approach to incapacity and that it purported to be rights-based. Having said all that, I do have to tell the Minister of State a couple of things.

First, as we discussed here yesterday and as the Minister, Deputy Jim O'Callaghan found out at first hand the day before, there is an obligation on Ministers who sponsor any legislation to come back a year later and to inform this House by depositing a report under Standing Order 204 of the Dáil and Standing Order 179 of the Seanad, as to how the implementation has actually gone. Most Ministers and Departments do not know that but the Minister, Deputy O'Callaghan has said he is going to comply with that obligation in future. I urge the same on the Minister of State's Department. The reason I do so is that when an Act as groundbreaking as the 2015 Act comes into effect, it is hugely important that it is not just put up on the shelf there as an achievement in the Department but that it is immediately monitored as to how it is actually working.Any solicitor acting with a general practice, particularly a smaller solicitor's practice, is becoming increasingly frightened of the enduring power of attorney procedure. It is too difficult and troublesome to comply with. If you think of the hours you have to put into setting up an enduring power of attorney, you have to charge fees, and then people suddenly say that they had thought it was a simple thing, like making a will. It is not. The process is immensely difficult. The time has come for the Minister of State's Department to simplify the procedures and make them easier and less demanding, especially for solicitors, who have all the best intentions for their clients. They do not want to turn away clients who are family members and the like but they equally now shudder when an enduring power of attorney request is made of them. The Minister of State should know that. This is not profitable work; it is difficult, hard work for solicitors and can go so badly wrong that many of them would prefer not to do it at all. That is reflected in the fact that a small number of solicitors rather than a large number right across the country are doing this kind of work. In terms of availability of assistance, that is a problem.

Second, I was conscious of this and I contacted the Law Society and asked it for its views. It suggested a number of amendments, most of which have been ruled out of order here. I accept that the Bill has a very narrow focus and is an emergency Bill, but the time has come for the Minister of State's Department to engage with the Law Society and ask what is wrong with the present process that people are afraid to avail of the remedies that are there. To give the Minister of State an example, the obligation on somebody contemplating enduring power of attorney to notify all of their children is offensive to many people. It is a private matter for them and not the business of all of their children. They may have difficult children and supportive children. We have said they have to tell everybody, so you have to have a row in the family to get the whole process going. That simply cannot be right. I know it was enacted with the best of intentions that nobody would be left out and that it would not be done secretly or whatever, but there is such a thing as the privacy of the person facing a disability.

I recognise the necessity of the Minister of State's Bill, but she should not think that it solves the problems. There are wider problems. I very much welcome the remarks made in her speech that she will engage with all of the stakeholders because there is a job of work to be done to make sure that the 2015 Act does not in fact have the counterproductive effect of scaring people away from remedies that should be widespread.

Chris Andrews (Sinn Fein)
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Before I call the next speaker, Senator Margaret Murphy O'Mahony, I want to welcome guests of Cormac Devlin: Eamon de Valera, whose name is obviously recognisable in this House, Lily Cummins, Cormac Kavanagh, Lily Mae Fahy, Cian Bermingham and Lily Wade from the US. You are all very welcome and I hope you are enjoying your visit. You are in safe hands. I hope Cormac will buy you lunch later.

Next is Senator Murphy O'Mahony.

Margaret Murphy O'Mahony (Fianna Fail)
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No better man.

Cuirim fáilte roimh an Aire Stáit. I welcome the opportunity to speak on the Assisted Decision-Making (Capacity) (Amendment) Bill 2026. Fianna Fáil welcomes this debate and supports the Bill. This legislation is narrow in scope but vital in its purpose. It addresses a serious and imminent issue arising from the Assisted Decision-Making (Capacity) Act 2015, which, following its commencement on 26 April 2023, required that every adult ward of court have their capacity reviewed within three years, that is, by 26 April 2026. While significant progress has been made across the Courts Service and the decision support structures, the reality is clear: not all wards have yet had their capacity reviewed. This is not due to a lack of effort or commitment but reflects the complexity and sensitivity of these cases, many of which involve individuals whose needs are profound. Without legislative action, we would face legal uncertainty for hundreds of people still in wardship who will not receive a capacity declaration by the statutory deadline. Today's Bill provides the essential safeguards needed to protect their rights and ensure legal continuity.

The core purpose of the Bill is straightforward: it allows the wardship court to extend the period for making a capacity declaration where good reason exists and where meeting the 26 April 2026 deadline is simply not possible. Importantly, the court will retain full discretion to determine what is necessary and proportionate in each case. A single extension may be granted, and in exceptional circumstances a further extension can be approved. These extensions, however, are strictly time-bound. All adult wards must have a capacity declaration no later than 25 October 2027. This ensures both flexibility and certainty.

The Bill also deals with another important group: those who will turn 18 shortly before or after the deadline. As practice has shown, six months is often not enough time to gather appropriate evidence to make a capacity declaration for young people transitioning from childhood wardship to adult arrangements. To address this, the Bill gives the court discretion to extend the deadline for these young adults as well, again with a clear maximum of 18 months.

It is worth remembering the broader reform we are continuing here. The 2015 Act and its 2022 amendments marked the end of adult wardship in this State and established a modern, rights-based system of tiered decision supports. This was not merely an administrative change but a transformation grounded in autonomy, dignity and compliance with the UNCRPD and the European Convention on Human Rights, ECHR. It was a reform long sought by disability advocates, safeguarding groups, civil society and many former wards and their families. The Courts Service has been working intensively to meet the statutory deadlines, listing all remaining wardship matters, appointing legal representation and issuing legal aid certificates. Progress is being made, and this Bill ensures that progress is lawful, orderly and, above all, fair.

At the heart of this Bill is a simple principle: nobody should be left in legal limbo when the State has committed to ending wardship. These amendments provide clarity, protect rights and uphold the integrity of the transition to the new decision support framework. For these reasons, Fianna Fáil supports the Bill, and I look forward to constructive engagement as it progresses.

Pauline Tully (Sinn Fein)
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The Minister of State is welcome. There is no doubt that we will have to pass this legislation today because if we do not, we leave the 1,000 or so people still in wardship in legal limbo. It is really unfortunate, however, that it has been left to the last minute. The Department, or the Minister of State's predecessor, must have foreseen that this issue would arise because only slightly more than a quarter of the people who were in wardship when the Act commenced three years ago have been discharged from wardship at this stage. There are obviously problems within the system. That, as I said, had to be foreseen. Had this been brought forward earlier, perhaps a year or even six months ago, we could have had a much wider debate about addressing some of the issues as to what was causing the backlog. If we do not address the issues causing the backlog, we will end up back here again in another year or 18 months, and we cannot have that.

The issues causing the backlog seem to be that there are difficulties engaging legal representatives with the appropriate skills and knowledge to support discharge. That has been referred to by previous speakers. We need to look at that. We need to properly resource the Legal Aid Board, the national advocacy service and the Decision Support Service. They all have a part to play in this, and I do not think they have been adequately resourced to address the number of people who are still wards of court or in wardship.I am concerned that this is not compliant with the UNCRPD. The Minister of State is aware that "nothing about us without us" is a mantra for that convention. We have people in this country, many with intellectual disabilities, who are in wardship, but what I read from this Bill is that, while they will be notified of the discharge process, they will not be taken through it. It is not explained to them. That needs to be done. There needs to be information provided in an accessible format for them and their families to ensure they understand the process as much as possible, and that there is a fair way of addressing and assessing their capacity and the appropriate supports are put in place after that.

I am concerned about how the Bill treats children in wardship. If a child in wardship is due to exit at the age of 18, is that going to be delayed for up to 18 months? If so, they could be 19 or 19 and a half before they get out of it. That age is a really important time of life for many young people. They are looking at how their lives are going to progress and whether they are going to engage in further education, employment or whatever it might be. That could be delayed because they do not have the right to make those decisions for themselves.

There are a number of issues here. It is unfortunate that this matter was not addressed in a more timely fashion and that this amending Bill was not broadened to discuss many more of the issues that are involved here. Amendments have been ruled out of order. Those amendments were all vital to addressing these issues. The same happened when the Bill was before the Dáil and the disability matters committee. Amendments were not approved and discussed because they did not fit within the narrow confines of the Bill. It is important that we address the issues that are causing the backlog so that we can have a fair system to ensure that people are properly informed and have the information and support to exit the wardship and be able to make decisions for themselves.

Laura Harmon (Labour)
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I concur with Senator Tully's comments. "Nothing about us without us" is a phrase people hear from many organisations advocating for disabled persons in Ireland.

The Assisted Decision-Making (Capacity) Act 2015 changed the outdated wardship laws for a modern Ireland. It was a stepping stone towards beginning to view disability from a social rather than a medical model, but I have serious concerns with regard to the current implementation of the Act and the proposed legislative changes we are discussing.

There is a lot of confusion regarding the Act for people impacted by it, as well as families and services. In particular, the Act brought a lot of conflict between the parents of adults with disabilities and service providers, as well as other bodies like financial institutions.

In relation to wardship, one of the reasons cited for not initiating the process to transition out of wardship is that people feel there is not adequate information. They feel that they have not been well communicated with. However, there is also evidence that some committees and wards chose not to engage with the information that was made available by various public bodies.

I want to highlight a project completed by Family Carers Ireland on the implementation of the Act. The CarerAid project found a number of issues being faced by people navigating the Act. These include difficulties finding legal practitioners willing to take on cases related to the 2015 Act, and a real lack of clarity and consistency from service providers, in particular financial services, on how the Act is integrated into their policies and practices. The project found that people had difficulty navigating and using the Decision Support Service, DSS's online portal. It also found that there were delays in processing support arrangements with the DSS and that people had difficulties obtaining the legal statement of capacity that must be provided by a legal practitioner.

I welcome the fact that a specific enduring power of attorney, EPA, website has been created. This will no doubt take a lot of pressure off people navigating the process of creating an EPA. However, we must highlight that their continues to exist a digital-first approach for a cohort of people who may prefer to use paper-based forms. It is reflective of the entire assisted decision-making system that the Government must now look at extending the deadline for all warship cases to be discharged. Wardship is an extremely outdated system, with wording based in an Ireland long forgotten. The Government, however, did not realise the true complexities involved in discharging people from wardship along with the confusion it brought to many households. The amendment of section 54 of the Act will allow for judges to extend a deadline for the discharge from wardship under "exceptional circumstances", but there is no clarification of what constitutes an exceptional circumstance. The Labour Party has looked at recommendations provided by the Centre for Disability Law and Policy in the University of Galway and agrees that a more just approach in these circumstances would be to only activate the extension in circumstances where it has not been possible to inform a ward of their rights in an appropriate and accessible manner, and for judges to ensure that the extension of the deadline is used only to support the ward and their committee to engage meaningfully and to participate fully in the discharge process.

We are concerned about the lack of consultation with current wardships. In reading the amending Bill, I have only found sections that refer to notifying the ward. One in seven of the 250 people who have been discharged from warship so far have been deemed to have full capacity and are not in any decision-making arrangement under the current system. This implies that many of those who are locked in the wardship system are entirely capable of making their own decision. This underscores the importance of not just exiting the wardship system, but ensuring there is engagement with wards throughout the process. The Bill does not provide any engagement or consultation with the ward. I note that a number of bodies like the National Disability Authority and the National Advocacy Service for People with Disabilities have highlighted the lack of supports for wards trying to navigate the discharge process. There is an opportunity to address this advocacy deficit. The Labour Party recommends that, in cases where an extension is granted under exceptional circumstances, this period be used to fully support all wards and their committees in understanding the discharge process and to prepare them for life after the wardship.

I fully welcome the central aim of the Act in removing the outdated wardship system, but the amending Bill only further reinforces a failing system. It does not address any of the central problems that exist with the wardship system and fails to acknowledge the rights of disabled people. If the Government truly wants to support disabled people, it must address the issues that are being outlined in this House.

Emer Higgins (Dublin Mid West, Fine Gael)
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I will aim in the five minutes I have to address the issues that were raised by Senators. I thank them for their engagement on this. It is a really important matter and, as Senator Tully said, it is important that we make a decision to approve this legislation today in the interests of wards of court.

Senator Byrne had a concern relating to legal representation. Anyone who has requested free legal aid has got it and everybody has legal representation assigned to them now. That is obviously a really important step because we now need to move through this process and ensure that the 1,000-plus wards of court get to court as soon as possible.

Senator McDowell spoke about the Government's obligation to come back and report to the House. One of the obligations under the 2015 Act is a legal obligation that it be reviewed within the first five years of its introduction. A number of concerns the Senator raised, in particular those around enduring power of attorney, will come in under that review. That review was scheduled to begin next year, but in response to the level of concerns, consultation and feedback from Senators and TDs, the Department is now going to engage in that review earlier than planned and preparations are already under way for that it to commence. We hope to be able to commence it this year.

The Senator referenced the number of solicitors and legal professionals who have difficulties with aspects of this Bill, in particular with the enduring power of attorney. He also asked for the Department to directly engage with the Law Society. Our Department is in continual engagement with the Law Society. The Law Society was present at a consultation on this issue that I attended earlier this month or at the end of last month. We had a discussion at that. The lines of communication are very much open because it is really important that we include all stakeholders in this, including legal representatives and others working in this area.Most importantly, it concerns the people who are impacted by this, namely, the wards of court, their families, committees, decision-makers and the Decision Support Service. Our series of consultations has been about engaging with them.

In terms of monitoring the specifics of the Act, I can confirm that there is an interdepartmental steering group that meets regularly. It comprises representatives from the Decision Support Service, the Mental Health Commission, the Courts Service, the Legal Aid Board and the Departments of justice and Health, which are key stakeholders in this regard. We will continue to work with them on an ongoing basis.

Senator Murphy O'Mahony described the Bill as transformative change and said it was grounded in autonomy, dignity and the rights of persons with disabilities under the UNCRPD. I wrote that down because I completely agree with that assessment and it is a great way of summarising the intent of the Bill. We now need to ensure that some of the feedback we have received since it was passed is taken into account during the review process and any changes or updates that are required or updates happen.

Senator Tully spoke about the backlog of legal representation. That has now been resolved. It might interest Members to know that additional Courts Service resources have been allocated to this to ensure that we can get through the backlog of cases to which the Senator referred and ensure that people have a timely opportunity to come to court. For that reason, the court is only able to allow extensions to happen in exceptional circumstances. It has to be first proven that there are exceptional circumstances.

Senator Tully had a particular query in regard to minor wards. I reaffirm that the Bill only gives discretion to the High Court to extend in certain circumstances. Having said that, through experience we know minor cases can often be particularly complex. Ultimately, whether one is a minor or an adult, 25 October is not a target date. That is the absolute endpoint in terms of the matter being dealt with. That is why we have not moved the target date of 26 April. That is why we have said the relevant bodies need to go to court and get the special exemption they need in order to have additional time to consider a case. A core reason for that is because we want to keep the pressure and momentum on.

Senator Harmon used the phrase "Nothing about us without us". That is something that we in the Department and I as Minister of State stand by. That is why when we received approval from Cabinet for amendments to the Act, the first thing we did was hold an online consultation on the same day with some of our key stakeholders in the legal sphere. We followed that up with a paper to our disabled persons' organisations and stakeholders who work in that space. We held a consultation with them and have had an in-person consultation. That is core to what we do. It is a core principle of the human rights strategy for disabled people that there is nothing about us without us.

The Senator had a specific query on the phrase "exceptional circumstance". We have left that phrase open to the courts. The reason for that is because we trust the courts to be able to identify an exceptional circumstance, work with the case that is in front of them and, ultimately, to have the discretion to determine how much time can be given as an extension. There is the opportunity for a second extension under this amendment. As I said, the October date is the final cut-off date and only two extensions are allowed. The reason for that is because none of us want to be back in this situation in a year's time and need to ask for further time. We do not want that. We want to be able to support our wards of courts through this process. That is what our consultations and the information being provided from the Decision Support Service is about. That is why wanted to make sure that we did not change the deadline.

We made it difficult for people. They had to request an extension and a judge had to determine that it was in the interests of justice. The reason for that is because we want to keep momentum on this and ensure that our wards of court, as Senator Murphy O'Mahony said, move through the transformative change in order to get more autonomy, dignity and rights under the UNCRPD.

Chris Andrews (Sinn Fein)
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When is it proposed to take Committee Stage?

Cathal Byrne (Fine Gael)
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Now.

Chris Andrews (Sinn Fein)
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Is that agreed? Agreed.