A co-decision-maker may be appointed. This is a suitable person appointed jointly to make decisions with the appointer on the appointer’s personal welfare, property or affairs or both, in accordance with regulations and specifications. A co-decision-making agreement is to be entered.
Any person over 18 years, who considers that his or her capacity is in question or may shortly be in question, may appoint a suitable person over 18 to jointly make with him, one or more decisions on the person’s wealth, personal welfare, property or affairs or both, in compliance with regulations.
A person in relation to whom a decision-making representation order is made by court may appoint a co-decision-maker and the regulations and specifications shall apply to that appointment with any necessary modifications
A person is suitable for appointment as a co-decision-maker if he or she is a relative or friend of the appointer who has had such personal contact with the appointer over such period that a relationship of trust exists between them, and the person concerned is able to perform his or her functions under the co-decision-making agreement.
An appointment as a co-decision-maker shall be made in writing in a co-decision-making agreement in compliance with regulations made under the Act.
An appointment is not to include a co-decision-making agreement for the disposal of property by gift. The contents of a co-decision-making agreement is to be specified. It is to include particulars of the person’s, signatures, signatures of two witnesses.
It is to be signed by the parties or on behalf of a person who does not have capacity to sign, in his presence or and at his direction. The agreements is to be entered, the agreement is to be witnessed by at least two competent witnesses.
A person may appoint more than one person as co-decision-maker. He may not appoint in the same co-decision-making agreement more than one person as a co-decision-maker but appoint in a co-decision-making agreement, a co-decision-maker in respect of a decision which is the subject of another co-decision-making agreement.
The Director, on request by a person who intends to appoint a co-decision-maker or a proposed appointee or both, provide information regard to making and entering the co-decision-making agreement.
The persons disqualified as decision-making assistants are also disqualified as co-decision-maker.
Role of Co-Decision Maker
In exercising his functions, which are specified in the co-decision-making agreement, the co-decision-maker is to:
- advise the appointer by explaining relevant information and considerations relevant to the decision in question,
- ascertain the will and preference of the person making the appointment on the matter concerned and assist the appointer with communicating his will and preference,
- assist the appointer in obtaining relevant information,
- discuss the known alternatives and likely outcomes of the decision,
- make a relevant decision jointly with the appointer,
- make reasonable efforts to ensure that the decision is implemented insofar as possible.
A co-decision-maker is entitled to be reimbursed from the assets of the appointer his fair and reasonable costs which are reasonably incurred in performing his functions as co-decision-maker, vouched in a manner acceptable to the Director, and included in a report submitted by the co-decision-maker. A co-decision-maker is not however entitled to remuneration for performing his functions.
Where an application has been made to register a co-decision- making agreement but before registration or after registration of a co-decision-making agreement, the co-decision-maker or certain others have reason to believe that the appointer’s capacity has deteriorated to the extent that he lacks capacity in relation to the decisions concerned even with the assistance of co-decision-maker, or that his capacity has improved to the extent that he has capacity in relation to such matters, he shall promptly inform the Director of that belief.
A decision being made jointly means that the co-decision-maker shall acquiesce with the wishes of the appointer in relation to the decision concerned unless it is reasonably foreseeable that such acquiescence will result in serious harm to the appointer or another person.
A co-decision-maker shall not have authority to make decisions jointly other than decisions specified in the co-decision-making agreement.
Where the appointer has more than one co-decision-maker, each shall exercise their functions in a manner which is not inconsistent with the functions exercisable by the other.
The circumstances in which a co-decision-making agreement is invalidated are similar to those applicable in respect of decision making assistance. In broad terms, they cover the following:
- nullity or dissolution of marriage or judicial separation agreement, actual separation; civil partnership equivalence,
- subsequent separation of cohabiting parties; equivalent in respect of civil partners;
- the co-decision maker been convicted of certain offences in relation to the appointer or his family;
- the co-decision maker being bankrupt or entering an insolvency process;
- the co-decision-maker being restricted or disqualified as a Director;
- owners or registered providers of a designated centre or a mental health facility in which the appointee resides, their employees or agents;
- co-decision-maker convicted of offences under the Act;
- entry into other incompatible types of agreements and decision-making procedures under the Act and powers of attorney being registered, enduring powers of attorney being registered.
The nullity of a co-decision-making agreement in relation to a relevant agreement does not operate to prevent a person who relied on the agreement from recovering damages in respect of loss incurred by him, as a result of that reliance.
A decision made within the scope of a registered co-decision-making agreement shall not be challenged on the ground that the appointer did not have the capacity to make the decision. Where a co-decision-making agreement is registered, a relevant decision made otherwise than jointly by the appointer and the co-decision-maker is null and void. Documents that require signing must be signed by both the appointer and the co-decision-maker.
Where the appointer is unable to sign, the document may be signed on his behalf by a person over 18, who is not the co-decision maker, in the presence and by the direction of the appointer.
A co-decision-making agreement is not to enter of force until it has been registered with Circuit Court. An application is to be made within five weeks of it being entered in accordance with regulations to be made by the Minister.
Notice is to be given to the following persons:
- spouses, civil partners, cohabitants,
- children over age of the appointer is over aged 18,
- any existing decision-making assistant, decision-making representative, attorney, designated healthcare representative for the appointer.
- any other co-decision maker under another co-decision making agreement.
This does not apply to spouses and civil partners who are a judicially separated, separated by written agreement or who have ceased to cohabit for 12 continuous months.
The application is to be accompanied by certain proofs. They include, in particular,
- the co-decision-making agreement
- confirmations by the appointer regarding his understanding of the nature and effect of the agreement
- statements by the co-decision maker confirming his understanding and acknowledging his responsibilities;
- a statement of why the less intrusive measure of decision-making assistance was not chosen,
- particulars of any existing agreement;
- a statement by a registered medical practitioner or other healthcare professionals may be prescribed that the appointer has capacity to enter the agreement, requires assistance in respect of the matters concerned, and has the capacity to make the decisions subject of the agreement with the assistance of the co-decision-maker.
The application is made to be Director, who shall review the application. He shall consider objections made below and make reasonable enquiries in order to establish that the relevant requirements apply.
If the application for registration is refused, the matter may be appealed to court within 21 days. The court may affirm or overturn the decision of the Director.
Notice of refusal or registration must be given to the notice parties above.
The following parties may object to the registration of a co-decision-making agreement. They must do so not later than five weeks of from the date notice is given.
The objection is to be in a form specified and accompanied by the prescribed fee. The parties are those mentioned above.
The bases of opposition are, lack of proper execution, lack of capacity to enter the co-decision-making agreement;
- actual capacity in relation to the relevant decisions without the assistance; lack of capacity with assistance;
- entry of the agreement not in accordance with the preferences of the appointer;
- the co-decision-maker is not a suitable person having regard to the above criteria;
- the co-decision-maker is not qualified or is disqualified;
- a false statement is included;
- fraud, coercion or undue influence was employed.
The Director shall consider the objections and consult with the appointer and co-decision-maker. They shall give him a reasonable opportunity to respond. He may consult with others. He shall give his decisions and reasons for decisions or shall refuse to register.
Rejection of Objection
where he or she is of the view that the objection is not well founded, notify the appointer, the co-decision-maker and the person who made the objection of his or her view, provide reasons for that view and proceed, , to register the co-decision-making agreement concerned, or where he or she is of the view that the objection is well founded, notify the appointer, the co-decision-maker and the person who made the objection of his or her decision and refuse to register the co-decision-making agreement.
A person who has been notified unof the Director’s decision may, not later than 21 days after the date of issue of the notification by the Director, appeal the decision concerned to the court. Upon appeal , the court may—
- declare that the objection is well founded and require the Director to remove the co-decision-making agreement concerned from the Register, or
- affirm the decision of the Director, or
- declare that the objection is not well founded and require the Director to proceed to consider, in accordance with section 22, whether the co-decision-making agreement should be registered, taking the court’s declaration into account, or
- affirm the decision of the Director and declare that the co-decision-making agreement should not be registered,
- make such other declaration or order as it considers appropriate.
Effect and proof of registration
A relevant decision which is made within the scope of a registered co-decision-making agreement shall not be challenged on the grounds that the appointer did not have the capacity to make the decision. Where a co-decision-making agreement stands registered, a relevant decision made otherwise than jointly by the appointer and the co-decision-maker is null and void.
Where a relevant decision requires the signing of any document, the relevant decision is null and void unless both the appointer and the co-decision-maker sign the document.
Where the appointer is unable to make his or her signature, a document may be signed on the appointer’s behalf by a person who has attained the age of 18 years and who is not the co-decision-maker if the appointer is present and directs that the document be signed on his or her behalf by that person.
The Director of the Decision Support Service maintains a register of co-decision-making agreements. It is to be available for inspection by persons prescribed by regulation who satisfy the director that they have a legitimate interest in inspecting the register.
An authenticated copy of a co-decision-making agreement or part thereof, or, where applicable, of a varied co-decision-making agreement or part thereof, that is issued by the Director and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the agreement or part thereof as at the date and time indicated on the stamp.
The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy of a co-decision-making agreement, or part thereof, or, where applicable, a varied co-decision-making agreement or part thereof, from him or her.