From 26th April 2023, the law in Ireland has taken it for granted as a basic human right that I can manage my own affairs . This means making my own decisions. Does this seem weird? Well, it is if you think about what has gone before. We had people being “made” a Ward of Court or “taken” into Wardship. We had notions like “unsound mind” that we took for granted.
What Is Capacity?
But what will happen then to the 2000-3000 people who are currently in Wardship? Over the next few years they will have their cases reviewed and their capacity assessed. Many of them will be found to have capacity and will be released from Wardship. Capacity is simply my ability to make decisions for myself and is not a general state of mind. Instead, it relates to my ability to make a specific decision at a specific time. I might be able to make a decision about an investment in the morning, but not in the afternoon. I might not be able to make financial decisions at all, but might be well capable to deciding where to live and who I wanted to live with. Clearly, I would need some kind of support, but what exactly?
Capacity and Decision Making
In the past, unless I had planned ahead by putting an Enduring Power of Attorney in place, I would have been made a Ward of Court. Wardship was a blunt instrument and the person who could make financial decisions in the morning but not in the afternoon was treated in the same way as the person who did not know what a financial decision was at all. The State took over their affairs and they had no say in the matter. What has happened since 26th April 2023 is that a person who needs support will be given the option of appointing a Decision Making Assistant. This is a formal process requiring a legal document.
Decision Making Assistance
If I find yourself in difficulty with making a decision because my memory is not what it was or because I just cannot cope with all the information involved, I can choose somebody whom I know and trust to help me make that decision. Such a person can gather the necessary information, explain it, help me consider my options and let other people know of my decision. It could be that I can make a decision very easily but forget to follow through on it. A Decision Making Assistant can help me with that follow through.
Co-Decision Making
If I find it impossible to make a decision even with the help of a Decision Making Assistant then I can appoint somebody whom I know and trust to make that decision with me. That person is called a Co-Decision Maker and will do all the things that a Decision Making Assistant does but will also decide with me what to do.
It is important to know that I can have capacity even when I am losing my memory. I might make a decision in the morning and forget it by the afternoon. It is still a valid decision and I am entitled to make it, even when it is an unwise decision by the standards of other people.
Why Would I Need a Decision Making Representative?
You are probably wondering what happens if I cannot make a decision even with all the help and support that a Decision Making Assistant or Co-Decisionmaker can give me. This could happen if my memory loss were so severe that I could not remember the relevant information for long enough to make the decision, or if I were unable to understand or evaluate the information. In that case, I would need to have a Decision Making Representative appointed by the Court.
Is It Better to Have An Enduring Power of Attorney?
The chances are that if you are in need of a Decision Making Representative you will not be reading this. A family member or a friend of yours will be reading it and wondering what to do next. If you are that person, you will find plenty of useful information on the Decision Support Service website.
It is worth remembering that if you have a friend or relative whom you trust to make your decisions for you then you can plan ahead for a time when you may have very little Decision Making Capacity by creating an Enduring Power of Attorney. This would not only save the trouble, delay and expense of a Court Application but would ensure that the person in charge of your affairs was the person you chose yourself while you still could.
What We Can Do For You
If you would like practical help with an Enduring Power of Attorney, a Decision Making Assistance Agreement, a Co-Decision Making Agreement or an Application to Court to have a Decision Making Representative appointed, you can email bradleys@iol.ie, click the call button, phone 014545138 or use the Contact Form.