Assisted Decision-Making (Capacity) Act 2015

Caroline Fanning Solicitors is now providing advices in the following areas:-

People can no longer be made a Ward of Court since the commencement of the Assisted Decision-Making (Capacity) Act 2015 on 26/04/2023 which replaces the previous Ward of Courts process (where the High Court found a person to be of ‘unsound mind’ and ‘incapable of managing their own affairs’ (“a ward”) it appointed a committee to oversee the ward’s property and finances and overall care. The consent of the President of the High Court was required for medical treatment, to leave the country or make a will.)

It will be assumed that each person has capacity to make their own decisions until assessed.

The Decision Support Service (DSS) is a new service for adults who need support making decisions (such as those with intellectual disabilities, psychiatric illnesses, acquired brain injury and age related conditions to include dementia).

There are now three tiers of support
1.Decision-making assistant (chosen by the former Ward Of Court to assist in making decisions about personal welfare, finances and property);
2 Co decision maker ( nominated by the relevant person and appointed under a “co decision-making agreement” which record the decisions that the person needs assistance with and legally will allow the decisions to be made jointly);
3. Decision-making representative (DMR) (Where the court proposes to appoint a decision-making representative but no suitable person is willing to act the Director will be asked to nominate 2 or more persons from the statutory panel for consideration by the court for such appointment and the Director shall comply with such a request and the court may appoint from amongst those nominees a person to be a decision-making representative.)

All Wards Of Court will be discharged from wardship following a capacity review over a 3 year period; the capacity review will be carried out by the Courts medical visitor or you can select a consultant psychiatrist who may be involved in the care and treatment of the relevant person.

The process differs depending on the specific circumstances, and who is seeking decision-making support services, or making capacity applications.

For existing wards of court a solicitor must make a discharge application to the High Court within the next three years, which will be supported by a capacity assessment carried out by a psychiatrist.

The committee is a person who was appointed by the wardship court to make decisions on behalf of the ward with the approval of the court. The role of the committee will end once the ward is discharged from wardship.
The committee is one of the people eligible to apply to discharge the person from wardship.

A judge of the High Court will either discharge the person to look after their own affairs or will approve an arrangement with the relevant support services, which may involve registering with the new Decision Support Service.

If further court arrangements are required, the case will be referred to the Circuit Court to be progressed. 

From now on, where an individual is unable to make certain decisions, even with someone else’s support, a capacity application can be made to the Circuit Court to appoint a DMR.

A DMR will make certain decisions on behalf of the ‘relevant person’ – the person whose capacity is or is soon to be in question, taking into account their known will and preferences.

Applications must be brought to the Circuit Court where the relevant person:
Is residing at the time the application is made,
Is carrying on business at the time the application is made, or
Has resided at any time within the period of three years immediately prior to the making of the application.

If the wardship court declares that the ward lacks capacity, it will make a declaration about the ward’s capacity to make certain decisions and where appropriate, make orders so that a former ward may have one of the new supports available.

For all of the above 3 categories/tiers of “decision support” a Decision Support Arrangement (written agreement) must be signed and witnessed and registered with the DSS.

It has been estimated some 1,200 Circuit Court applications will need to be made.

This Act retains the option for people to arrange an Enduring Power of Attorney (EPA) which allows a person to appoint someone to make decisions on his or her behalf at a future date when/if he or she does not have capacity. A very informative and useful site on all aspects of dementia and caregiving is