About the Codes of Practice

The Decision Support Service

The Decision Support Service (DSS) is a statutory service established by the Assisted Decision-Making (Capacity) Act 2015 (as amended) (the Act).  

The DSS provides an essential service for people who face difficulties in exercising their decision-making capacity. The DSS aims to protect and uphold each adult’s right to make their own decisions about their personal welfare, property and affairs.

The DSS is responsible for a range of functions including:

• promoting awareness and providing information about the Act;
• registering and regulating certain decision support arrangements;
• supervising the actions and activities of decision supporters;
• maintaining panels of suitable persons who will act as decision-making representatives, special visitors and general visitors; and
• investigating complaints made under the Act.

The establishment and operation of the DSS is an important part of Ireland’s compliance with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)which the State ratified in 2018.

The DSS also acts as the Central Authority for matters relating to the Hague Convention on the International Protection of Adults.

The Assisted Decision-Making (Capacity) Act 2015

The Assisted Decision-Making (Capacity) Act 2015 (the Act) was signed into law by the President in December 2015. The Act replaces the wards of court system with a modern legal framework to support decision-making by adults who may face difficulty when making decisions. The Assisted Decision-Making (Capacity)(Amendment) Act 2022 was signed into law in December 2022.

The Act (as amended) repeals two laws about decision-making capacity that had been in place since the 19th century. These are the Marriage of Lunatics Act 1811 (repealed in February 2021) and the Lunacy Regulation (Ireland) Act 1871 (repealed on commencement of the Act).

All 13 codes of practice should be read in conjunction with the Act. These encompass the code of practice:

• on supporting decision-making and assessing capacity;
• for decision-making assistants;
• for co-decision-makers;
• for decision-making representatives;
• for attorneys;
• for special visitors;
• for general visitors;
• for independent advocates;
• for legal practitioners;
• for financial service providers;
• for healthcare professionals;
• for designated healthcare representatives; and
• on advance healthcare directives for healthcare professionals.

For the avoidance of doubt, in the event of any conflict or inconsistency, the legislative provisions in the Act prevail.

Functional assessment of capacity

Under the Act, a person over the age of 18 is always presumed to have capacity. Importantly, under the Act, a ‘relevant person’ – that is a person whose capacity is in question or may shortly be in question – is also presumed to have capacity. Where a person’s capacity is called into question, the first step must always be to support that person as much as possible to make their own decision. 

In a situation where a relevant person’s capacity is in question, even after all necessary supports have been provided, an assessment of their capacity is based on their ability to make a specific decision at a specific time. This is called the functional approach to the assessment of capacity.

A person lacks capacity if unable to:

• understand information and facts relevant to the decision;
• retain that information long enough to make a voluntary choice;
• use or weigh up that information as part of the process of making the decision; or
• communicate the decision by any means, including by assistive technology.

Supporting decision-making

The Act places the focus on the person making the decision and aims to ensure that they are supported to the fullest extent possible to maximise their decision-making capacity. This helps to uphold the person’s rights and safeguards their autonomy to make decisions for themselves. A decision supporter can be appointed under a decision support arrangement to achieve this depending on the level of support the person needs.

The Act sets out a tiered framework of supports with the intent that any supports provided will represent the least possible imposition on the person’s rights and freedoms.

To help a person access the support that is appropriate to them, it is important to:

• understand the decision support needs of the relevant person;
• ensure access to relevant and appropriate information;
• consider environmental factors that may affect the person’s decision-making; and
• provide ongoing support where appropriate.

Types of decision-making support arrangements

The Act sets out a tiered framework of decision support arrangements. These arrangements are based on the different levels of support that a person requires to make a specific decision at a specific time. In addition, the Act provides for future planning arrangements by way of an enduring power of attorney or advance healthcare directive, for adults who want to plan ahead for a time when they may not have capacity to make certain decisions.

Decision-making assistance agreement

A person who requires support to make certain decisions can appoint a decision-making assistant to help them access relevant information, understand their options, to communicate their decisions to others and to help ensure their decisions are implemented. It may be appropriate for an adult who needs support to gather and understand information to express their will and preferences.

Co-decision-making agreement

A person who requires more support than that provided by a decision-making assistance agreement can appoint a co-decision-maker to make certain decisions relating to their personal welfare or property and affairs jointly with them. It may be an appropriate decision support arrangement for an adult who requires a higher level of ongoing support from a person they know and trust and who understands their needs, to make important decisions.

Decision-making representation order

If a person is unable to make certain decisions even after all supports have been exhausted, the court may make a declaration about the person’s capacity and appoint a decision-making representative to make those decisions on their behalf. Where the person does not have a trusted person able or willing to be their decision-making representative, the court may appoint a decision-making representative from a panel maintained by the DSS. The court can also make a decision-making order, or interim order, to make a decision on behalf of the person. This applies where there is no enduring power of attorney or advance healthcare directive in place to deal with the specific decision(s) to be made.

Advance healthcare directive

A person can set out their wishes in relation to their healthcare in an advance healthcare directive in case they are unable to make those decisions at some time in the future. In their advance healthcare directive, they can appoint a designated healthcare representative who can advise and interpret what their will and preferences are in relation to treatment and consent or refuse consent on their behalf. In their advance healthcare directive, a person can refuse treatment, and this is as effective as if they are refusing treatment in the present. This can include the refusal of life sustaining treatment.

Enduring power of attorney

A person can appoint someone (or a number of people) as their attorney to make certain decisions about their welfare, property, and financial affairs if they are unable to make those decisions for themselves at some time in the future. An enduring power of attorney may contain a general authority for the attorney to act on the donor’s behalf, or a specific authority in respect of certain decisions only.

This tiered system of decision support arrangements allows for the amendment, cancellation, or replacement of one type of arrangement with another, depending on the person’s capacity and needs.

The Act recognises that a person’s decision support requirements may change over time and a person may have more than one decision support arrangement in place.

Relevant decisions

A relevant decision is a decision made, or to be made, which is the subject of one of the five decision support arrangements. Relevant decisions apply to:

• personal welfare decisions, including decisions related to the person’s healthcare, accommodation, employment, education and social activities; and
• property and affairs decisions, including decisions related to the person’s property, business, court proceedings, and financial affairs. 

Supervision

The Act introduces important safeguards requiring the DSS to oversee and supervise decision support arrangements. This includes monitoring decision supporters, for example, by considering objections that may be raised at the time of registration and reviewing periodic reports that certain decision supporters are required to provide.

The Act also requires the DSS to receive and investigate complaints made about decision supporters and decision support arrangements.

Guiding principles

The Act is underpinned by a set of guiding principles that are the foundation for interpreting and administering the Act. The guiding principles are rooted in human rights and consist of:

1. presuming every person has the capacity to make a decision, unless and until it is shown that they do not;
2. supporting people as much as possible to make their own decisions;
3. not assuming that a person lacks capacity on the basis of an unwise decision;
4. only taking action where it is really necessary;
5. where action is necessary, taking the least restrictive action on a person’s rights and freedoms;
6. giving effect to the person’s will and preferences;
7. considering and consulting the views of other people;
8. considering how urgent the action is; and
9. accessing and using information appropriately.

The code of practice for supporting decision-making and assessing capacity provides detailed information and guidance on how to apply the guiding principles in practice. It may be helpful to read this code of practice before all others. The supporting vignettes also provide examples of how the guiding principles might be applied in real life scenarios.

Obligations under the UNCRPD

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is an international human rights treaty which addresses the rights of people with disabilities. The UNCRPD has been given effect in Ireland through a range of legislation, policies and strategies, including the Act, which established the DSS.  

The establishment and operation of the DSS is an important part of Ireland’s compliance with Article 12 of the UNCRPD. In simple terms, Article 12 declares that states that have signed the convention:

• must reaffirm that people with disabilities have the right to recognition everywhere as people before the law;
• shall recognise that people with disabilities enjoy the same legal rights as others in all aspects of life;
• shall take appropriate measures to provide access to support that people with disabilities may require in exercising their legal rights;
• shall ensure that all measures that relate to the exercise of these legal rights provide safeguards to prevent human rights abuses under international law; and
• shall take all appropriate and effective measures to ensure the equal right of people with disabilities to own or inherit property, to control their own financial affairs and to have equal access to financial credit, subject to the provisions of this article.

The operations of the DSS will seek to address the requirements of the UNCRPD by:

• promoting awareness and providing information about the Act and the UNCRPD;
• applying the guiding principles in the performance of our own statutory functions;
• facilitating people to access legally recognised decision support arrangements appropriate to their circumstances;
• supervising decision supporter to ensure they are compliant with the Act, the guiding principles and relevant codes of practice;
• investigating complaints about decision supporters and decision support arrangements; and
• reporting to government and making recommendations on the operation of the DSS and the new statutory framework.

Matters not affected by the Act

Unless otherwise expressly provided, nothing in the Act or codes of practice shall be construed as altering or amending the law in force relating to capacity or consent required as respects a person in relation to certain matters. These include:

• marriage and its dissolution;
• consent to sexual relations;
• adoption and guardianship; and
• making a will.

During the transition period post commencement of the Act, orders can still be made in wardship in respect of current wards of court, until the ward is discharged from wardship, following the procedure set out in Part 6 of the Act. If an application to make someone a ward of court has been initiated when the Act is commenced, them that application may proceed to final orders, but it is also possible for the proposed ward to access the alternative support arrangements under the Act instead.