Introduction The Assisted Decision-Making (Capacity) Act 2015 (hereafter ‘The Act’) represents significant legislative reform in the area of disability rights. Upon its enactment, the Act was described by Inclusion Ireland as ‘a seismic cultural shift away from a paternalistic and ‘best interests’ approach …. to a rights-based approach of choice, control and consent’.387 The Act made numerous significant changes to the traditional system of wardship, which has consistently come under critique for being inflexible in its assessment of capacity, overly protective, and discriminatory.388 The Act establishes a modern statutory framework of support for adults who have impairments which may impact decision-making capacity. It centres the individual’s will and preferences and aims to provide practicable support to people who have difficulties with decision-making. However, the Act has yet to be commenced, and Ireland’s traditional wardship system, as governed by the Lunacy Regulation Act 1871, technically remains in operation.389 This chapter will examine the introduction and impact of the Assisted Decision-Making (Capacity) Act 2015 in Ireland. It will consider the previous system of wardship in Ireland and how the Act has altered this system, with particular reference to the assessment of capacity under the Act, forms of assisted decision making under the Act, powers of attorney, and advanced healthcare directives. Lastly it will consider the upcoming implementation of the Act. Wardship in Ireland The following section will outline the traditional system of wardship in Ireland, which is currently still in operation, and its impact. Defining Wardship The term ‘taken into wardship’ describes the scenario where an individual is deemed to lack capacity or unable to manage their own affairs, thus, according to the law, court intervention 387
Decision Support Service, Statement to Joint Oireachtas Committee on Disability Matters, 20 May 2021. The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 20 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 Nov 2021. 389 Áine Flynn, ‘Foreword’ in Mary Donnelly and Caoimhe Gleeson (eds), The Assisted Decision-Making Capacity Act 2015: Personal and Professional Reflections (HSE, 2021). 388
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