Decision Making Assistant

Appointment

Decision-making assistant is a person appointed to assist another who lacks capacity in making decisions on the appointer’s personal welfare, property and affairs, or both.

A person who has reached the age of 18 years and who considers that his capacity is in question or may shortly be in question, may appoint another person of at least that age to assist him in making one or more decisions on his personal welfare, property or affairs, in compliance with regulations.

The appointment as a decision-making assistant shall be in the form of a decision-making assistance agreement compliant with regulations. The agreement may be revoked by the person making it or by the decision-making assistant at any time. It may be varied with the agreement of the parties.

Decision-Making Agreement

Regulations are to provide for the form of a decision-making agreement, including

• prescribed forms, procedures and requirements for executing and varying and revoking the agreement;
• prescribing information to be included or annexed; incorporating information as to the effect of the agreement;
• providing for inclusion in the agreement of certain statements, including that the person appointing the decision-maker assistant has read and understands the effect of the appointment.
• that the decision-making assistant, him or herself understands the appointment and undertakes to exercise functions in accordance with the guiding principles in the legislation.

Regulations may specify the personal welfare, property and affairs, or both, which may be specified in such agreements. They may provide for attestation of signatures. It may provide for giving of notice of execution, variation and revocation to the Director, or such other persons as may be specified.

The Director of Decision making services may, with the consent of the Minister, specify in writing the following:

• the form of a decision-making assistance agreement;
• the information to be included in or annexed to a decision-making assistance agreement for the purpose of ensuring that any document purporting to create a decision-making assistance agreement incorporates adequate information as to the effect of making or accepting the appointment;
• that the following statements shall be included in a decision-making assistance agreement:
  • by the appointer, that he or she has read and understands the information as to the effect of making the appointment or that such information has been explained to the appointer, by a person other than the proposed decision-making assistant;
  • by the decision-making assistant, that he or she understands and undertakes to act in accordance with the functions of a decision-making assistant, including the duty to act in accordance with the guiding principles;
• the form of attestation of the signatures of the appointer and decision-making assistant by a person other than the appointer or the proposed decision-making assistant;
• the forms to be used in connection with the execution, variation and revocation of a decision-making assistance agreement; and
• the form of notice to be given by the appointer of the execution, variation or revocation of a decision-making assistance agreement.]

Decision Making Assistants

Decision-making assistants may be appointed jointly, jointly or severally, jointly in respect of some matters and jointly and severally in respect of others. The following categories are ineligible for appointment as decision-making assistants:

• a person convicted of an offence in relation to the person (or his or her child)who intends to appoint him ;
• a person who is subject of safety or barring order  in relation to the appointer (or his or her child);
• undischarged bankrupt or person in debt settlement arrangement or personal insolvency arrangement or who has been convicted of an offence involving fraud or dishonesty;
• a restricted director.
• a disqualified Director:
• a person who is owner or provider of a designated centre or mental health facility in which the person resides or intends to reside,
• resides with, or is an employee or agent or owner of such owner or registered provider, as the case may be unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the person who intends to appoint him as his decision-making assistants,
• certain persons who have been convicted under the legislation,
• persons who previously acted as decision-makers where there is a decision by the court that the person should not continue as decision-making assistant.

The restrictions in respect of bankrupt persons and restricted and disqualified directors do not apply to persons whose functions relate only to personal welfare.

Disqualification

A decision-making assistant shall be disqualified from being an assistant, If he or she is the spouse of the person appointing and their marriage is either annulled or dissolved under the law of the State, or another state, there is a decree of judicial separation, the parties enter a separation agreement or the spouses have ceased to cohabit for a period of 12 months.

Unless the agreement otherwise provides, parties to an annulled marriage, judicially separated, divorced or subject to a separating agreement are disqualified from being decision-making assistants of their former spouse and civil partner, as the case may be.

A decision-making assistant shall unless the agreement otherwise provides be disqualified from being the assistant where the appointer and appointed person were cohabiting and subsequently cease and separate and cease to cohabit for a period of 12 continuous months.

Where a person appoints a decision-making assistant is subsequently convicted of an offence in relation to the property or person of the appointer or that person’s child or the subject of a safety or barring order against him;

Where a person becomes fall within any of the above categories, they shall be disqualified, with effect from the relevant date.

Invalidation

Where any of the following occurs, a decision-making assistance agreement shall be invalidated to the extent that the agreement relates to a decision concerned;

• a decision-making order, a decision-making representation order or co-decision-making agreement in relation to the person making the appointment,
• an advance healthcare directive by the person where the person appointing lacks capacity,
• where an enduring power of attorney has entered into force.

Role of Assistant

In exercising functions under a decision-making assistance agreement, the assistant shall

• assist the appointer to obtain the relevant information,
• advise the appointer by explaining relevant information and considerations relating to the decision concerned,
• ascertain the will and preferences of the appointer on a matter the subject of the decision and assist the appointer to communicate them,
• assist the appointer to make and express a relevant decision, and endeavour to ensure that the appointer’s decisions are implemented.
• endeavour to ensure that the appointer’s relevant decisions are implemented

The decision-making assistant shall not make a decision on behalf of the appointer. The relevant decision taken by the appointer with the assistance of the decision-making assistant is deemed to be the decision of the appointer for all purposes.

Complaints

A person may make a complaint in writing to the Director in relation to decision-making assistants. It may relate to

• the decision making assistant , has acted or proposes to act outside the scope of his functions;
• that he is unable to perform his functions;
• that fraud, coercion or undue pressure were used to induce the appointer to enter into the co-decision agreement or revoke ot .

The Director is to carry out a review or  investigation and where he is of the view that the complaint is well-founded, make an application to the court for a determination in relation to a matter. Where he does not so find, he is to give reasons.

A decision of the Director that the complaint is not well-founded may beappeal to the court.

The Director may, of his own initiative carry out investigations and make an application to the court in relation to decision-making, grounds of complaint in relation to decision-making assistance.

The court may pursuant to the application or pursuant to an appeal, make a determination in relation to the matter above. It may, if it considers appropriate, determine that a decision-making assistant shall no longer act as such in relation to the appointer concerned.

The Director shall investigate a complaint unless in his or her opinion there has been undue delay in making the complaint.  A decision by the Director not to investigate a complaint—

• shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and
• may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.

A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a decision-making assistance agreement commits an offence and shall be liable—

• on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
• on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.

Coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, make, vary or revoke a decision-making assistance agreement.