The Act provides for a new human rights-based framework for people with capacity issues. The Act also abolishes the current wards of court system and replaces it with a modern, person-centred framework to maximise autonomy for people who require support to make decisions about their personal welfare, property and financial affairs.
It was announced last year that the Act would be commenced in June 2022. This summer, it was then announced that it would be enacted by November 2022. However, it now seems that because the legislation amending the Act, the Assisted Decision-Making (Capacity) (Amendment) Bill 2022 (the "Bill"), has not progressed through the legislative process as quickly as initially envisaged by the government, the commencement is further delayed to 2023. This Bill will make important amendments to the Act, including changes to the powers of the Director of the Decision Support Service and the Enduring Powers of Attorney regime.
Though the reasons for the delay in the legislative process are not clear, nor is it clear whether further amendments to the 2022 Bill are yet to be introduced in the Seanad, it is apparent that the postponement to the commencement of the Act and the assisted decision-making regime will no doubt disappoint many stakeholders, not least the Decision Support Service itself.
Consequences of the further delay to the commencement of the Act
Until the Act is commenced, persons deemed to be “of unsound mind” and “incapable of managing their affairs” will continue to be taken into wardship, a system governed by the Lunacy Regulation (Ireland) Act 1871, which has been strongly criticised for being extremely paternalistic and unfairly discriminatory. Similarly, wards of court wishing to exit that system will have to wait a further period before their case can be reviewed under Part 6 of the 2015 Act.
Furthermore, persons whose capacity may be in question or persons lacking capacity (“relevant persons”) will have to wait at least another number of months before they can access the important decision-making supports under the Act. This wait is in addition to the 7 years since the enactment of the Assisted Decision-Making (Capacity) Bill 2015 was introduced.
Moreover, the delay of the Bill means that the Government will not ratify the Optional Protocol to the Convention on the Rights of Persons with Disabilities, which establishes an individual complaints mechanism for the Convention on the Rights of Persons with Disabilities. The Government will not ratify this while the wardship system is still in place, because that system is such a clear violation.
Other concerns arising out of this delay will be the knock-on interruption to the publication of important related materials. For example, legal practitioners are awaiting publication of the amendments to the Superior Court and Circuit Court Rules which will govern court applications under the 2015 Act.
Further, relevant persons, expected decision-supporters, and professionals working with relevant person will be awaiting the publication of the Decision Support Service Codes of Practice.
The final versions of these Rules and Codes cannot be published until the 2022 Bill is enacted and the Act is updated accordingly.
It will be important for all interested parties to be familiar with the relevant finalised Codes and Rules governing their roles before the regime is commenced, so as to ensure a smooth transition to the new framework.
The ongoing delay to the commencement of the Act will certainly be a significant disappointment to relevant persons and wards of court who have been awaiting the decision support framework for several years already. The delay will also be important for expected decision-supports and practitioners who will interact with the 2015 Act, and who are eager for certainty and clarity in relation to the relevant codes and rules.
Written by: Eimear Burke and Hannah Unger
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