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Wills, Enduring Powers of Attorney & Assisted Decision Making

ENDURING POWERS OF ATTORNEY

An Enduring Power of Attorney can be signed by a person who is mentally capable and it will only come into force if that person becomes mentally incapable. The Enduring Power of Attorney (EPA) is not valid until the person becomes incapable and the Power is registered in the High Court. You can choose one or more people to act as your Attorney jointly or jointly and severally and the Attorney can be given power to manage all of your property and affairs including pension, bank accounts and sale of your property. The Attorney can also take personal care decisions on your behalf such as where you live, what you eat, what you wear, who you see and what rehabilitation you get.

When implemented the Assisted Decision Making (Capacity) Act 2015 will extend Enduring Powers of Attorney to cover healthcare issues (other than refusing life sustaining treatment).

ASSISTED DECISION MAKING

The Assisted Decision Making (Capacity) Act, 2015 when fully implemented will empower and support decision making for everyone regardless of whether or not they have an intellectual disability, dementia, Alzheimer’s or a brain injury.

“Everybody is a genius but if you judge a fish by its ability to

climb a tree it will live its whole life believing that it is stupid”.

Attributed to Albert Einstein.

Under the Assisted Decision Making (Capacity) Act, 2015 a person’s capacity is assessed on the basis of his ability to understand and consequences of a decision in the context of the available choices at the time the decision is made.

A person lacks capacity if he is unable:-

  • To understand the information relevant to the decision.
  • To retain that information.
  • To use or weigh that information as part of the process of making the decision.
  • To communicate his decision by any means.

If a person can only retain the information for a short period that does not prevent the person from being regarded as having capacity to make that decision.

The Act sets out guiding principles which includes a presumption of capacity and requires that the will and preferences of the individual be taken into account.

There are three forms of assistance provided under the Act:-

  • Decision Making Assistant – the person may appoint another person as a Decision Making Assistant and an agreement is entered into.
  • Co-Decision Maker – the person whose capacity is in question can appoint someone to make decisions jointly with him and a Co-Decision Making Agreement will be entered into. That Agreement has to be registered.
  • Decision Making Representative – a Court Application may be made to appoint a Decision Making Representative where neither of the previous forms of assistance are appropriate.

When the Act is implemented a review will have to take place in respect of all Wards of Court and declarations made about whether they should have a Decision Making Assistant, a Co-Decision Maker or a Decision Making Representative.

The Director of the Decision Support Service supervises Decision Making Assistants, Co-Decision Makers and Decision Making Representatives and Attorneys (appointed under the Enduring Powers of Attorney Act). He also has an obligation to promote public awareness and prepare Codes of Practice about Assisted Decision Making. http://enduringpower.ie/

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