Update on the Commencement of the Assisted Decision Making Capacity Act
The Decision Support Service will come into operation on the 26 April 2023. The Wards of Court Office will stop accepting wardship applications on 25 April 2023. The Wards of Court Office will commence the three-year statutory review and the discharge of all adult wards of court.
The commencement of Assisted Decision Making (Capacity) Act 2015 and the Assisted Decision Making (Capacity) (Amendment) Act 2022 does not impact on applications to bring a Minor into wardship. Minor wardship applications will continue to be accepted in the Wards of Court Office. Minor wards of court will be discharged from wardship on reaching their majority (18 years).
The Assisted Decision Making (Capacity) Act 2015 (the 2015 Act) introduces a new legal framework for supported decision-making in Ireland. It includes new statutory principles and practical supports for persons who may have difficulties with their decision-making capacity, including but not limited to persons with an intellectual disability, psychiatric illness, acquired brain injury, or age-related condition, such as dementia.
The new legal framework introduces a tiered system of supports based on the different levels of support that a person requires to make a specific decision at a specific time. There are three levels of support for people who currently, or may shortly, face challenges when making certain decisions:
- Decision-making assistant agreement
- Co-decision-making agreement
- Decision-making representation order
The 2015 Act provides that all wards of court will be reviewed and discharged from wardship within a three year period following commencement.
Who can make the discharge application?
- The ward of court (the relevant person)
- The committee of the ward
- A relative or friend of the ward in a position of trust with the relevant person
- Such other person as appears to have sufficient interest or expertise in the welfare of the ward (require the consent of the Court)
On receipt of an application for discharge of the relevant person from wardship the Wards of Court Office will:
- Review the file and identify any outstanding issues that need to be dealt with prior to discharge from wardship
- Request the Courts Medical Visitor (MV) to carry out a functional capacity assessment in line with the 2015 Act
- On receipt of the MV report the office will share the report with the relevant person, the committee and the applicant
- When all the correct documentation is received the review will be listed before the Court
- Applications will be listed before the Court in a sequential manner (in order of date received)
Listing of Reviews before the Court
Reviews will be heard remotely where possible and as a physical hearing if requested.
The Judge hearing the review case will receive a booklet of papers from the solicitor representing the party or the ward of court in addition to:
- Medical Visitor’s capacity assessment
- Applicant’s medical evidence relating to capacity (if submitted)
- A proposal from the applicant as to how the relevant person’s assets will be managed after discharge from wardship
Booklets of papers must be lodged with the office at least two weeks in advance of the hearing
The Discharge Order
On hearing the Court application, the Judge will make an Order that:
- The Ward does not lack capacity and discharge the person directing payment and transfer of their property to their own control
- The Ward does not lack capacity but may require a decision-making assistant in relation to some decisions and discharge the person directing payment and transfer of their property to their own control and give directions as appropriate to the discharge of the ward
- Make one or more than one of the following orders
- that the relevant person lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to assist in making one or more decisions
- that the relevant person lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available (a decision- making representative is required)
- Where there is no-one able or willing to act as a co-decision maker or decision- making representative the Court will request the Director of the Decision Support Service to nominate two panel member decision making representatives and appoint one or more than one as required
Registration of Agreements
- The appointment of a co-decision-maker forms part of the co-decision-making agreement that must be registered with the Decision Support Service within 5 weeks of the signing of the agreement
- The decision-making representative order must be registered with the Decision Support Service as the terms of the order act as the agreement.
- When the co-decision-making agreement or the decision-making representative order is registered with the Decision Support Service proof of registration must be presented to the Wards of Court Office to facilitate payment out of funds in Court
The Decision Support Service
The Decision Support Service is a new service established under the Assisted Decision-Making (Capacity) Act 2015.
For further information visit their website https://decisionsupportservice.ie/
If you need information about applying for Legal Aid to assist bringing a discharge application the link below will bring you to the Legal Aid Board page on discharge from wardship and Assisted Decision Making
How Court Funds are Managed
For information on how court funds are managed on behalf of wards of court, please contact your relevant case officer: -
Flowcharts Explaining The Wardship Discharge Process
Link to Joint Webinar Between the Office of Wards of Court and the Decision Support Service