In an earlier piece we covered the general principles of the Assisted Decision-Making (Capacity) Act 2015. But what happens if intervention is required for a person? If a person has not made an Enduring Power of Attorney and subsequently loses capacity to manage their own affairs or make decisions in relation to their welfare or property or both, there are three options available under the Assisted Decision-Making (Capacity) Act 2015.
- Decision-Making Assistant: Where a person considers that his or her capacity is in question or may shortly be in question, they may appoint another person known as a Decision-Making Assistant. This person must be over 18 and their role is to assist them in making decisions in relation to their personal welfare and property and affairs. More than one person can be appointed to act as a Decision-Making Assistant. The appointment is made in a Decision-Making Assistance Agreement. At the current time, Regulations from the Minister.
- Co-Decision Maker: If a person has greater capacity needs (such as requiring assistance with more significant legal decisions such as the sale of property) than would be covered by a Decision-Making Assistant, they have the option of making joint decisions with another person and this other person would most likely be a family member or friend. There are a number of key points on making this arrangement:
- The Co-Decision Maker must have such personal contact with the person appointing them over a period of time that a relationship of trust exists between them.
- The appointment of a Co-Decision Maker must be made in writing and a person may appoint more than one person as a Co-Decision Maker.
- The role of the Co-Decision Maker is to advise the person appointing them by explaining relevant information, ascertaining the views and preferences of the appointer, assist the appointer in obtaining relevant information and making a decision jointly with them.
- A Co-Decision Maker is not entitled to be paid but they are entitled to fair and reasonable costs and expenses.
Both the person appointing and the Co-Decision Maker must sign a Co-Decision-Making Agreement. In order for a Co-Decision-Making Agreement to enter into force, it must be registered with the Decision Support Service which is the national service overseeing the operation of the Act. Notice must be given to specified persons such as close relatives. A doctor and a healthcare professional must also confirm that the appointer has the capacity to enter into the Co-Decision-Making Agreement.
A report must be submitted on an annual basis to the Decision Support Service by the Co-Decision Maker on their activities during the year and the report must be approved by the appointer. This report will most likely include a list of the decisions made through the Co-Decision Making agreement and the money spent making those decisions.
With this option, this is a greater level of intervention and it requires greater levels of protection and safeguards for the person making the appointment.
- Decision-Making Representative: Where a person is not able to use either the decision-making assistance or co-decision-making options, the Court can appoint a Decision-Making Representative. If the matter is sufficiently urgent, the Court can make the decision on behalf of the person. Where it is not urgent, the Court will appoint a suitable person as a Decision-Making Representative. A suitable person must be appointed and the Court will take into account the preferences of the person for whom the Decision-Making Representative is being appointed. The Court will also consider the desirability of preserving existing family relationships and they will also take into account conflicts of interest. More than one person may be appointed and the Court can appoint different persons in relation to different decisions. A Decision-Making Representative is obliged to report to the Decision Support Service every year. They must provide details in their report of all expenses and money paid or reimbursed to him/her.
In all of the three new options set out above, there is clearly an emphasis on the right of the person who is lacking capacity to make a decision for themselves and there are much greater safeguards in the new Act for the person who is lacking capacity.