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.
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 who intends to appoint him;
- a person who is subject of safety or barring order in relation to the appointed;
- 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.
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.
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.
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.
A person may make a complaint in writing to the Director in relation to decision-making assistants. It may relate to the manner in which he is acting, 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.
The Director is to carry out an 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 appeal 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.
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