6 - Supported Decision-Making and Enduring Powers

Summary

This chapter begins by evaluating the existing legal framework of supported decision-making and enduring powers of attorney in Ireland. It examines in detail the definition and assessment of mental incapacity, as well as operational aspects of the enduring power such as: the registration procedure, scope of authority; safeguard measures; and assistance in the decision-making process. It then introduces the reform of this area of law that will be brought about by the domestic ratification of the UN Convention on the Rights of Persons with Disabilities – the Assisted Decision-Making (Capacity) Act 2015 (ADMA). The Act puts in place a new legal framework for supported decision-making, statutory expression of a functional approach to capacity, a broader scope of power of attorney, reporting obligations on the attorney and a complaints mechanism in respect of the creation and operation of enduring powers. Although these legislative innovations may theoretically protect persons with cognitive impairments, only a small number of them have commenced operation. There are concerns as to when the entire ADMA will be fully implemented. In the meantime, Ireland may have to rely on similar principles to those set out in the CRPD, which principles are being developed within its existing legislation and case law.