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Ireland

Assisted Decision-Making (Capacity) Act 2015

In short

This law reforms the legal framework concerning individuals who need assistance with decision-making, focusing on their capacity to make decisions. It introduces new mechanisms to support and protect these individuals.

What it regulates

  • Decision-making assistance agreements and co-decision-making agreements.
  • Applications to court regarding a person's capacity and the appointment of decision-making representatives.
  • Enduring powers of attorney, including their creation, registration, and revocation.
  • Advance healthcare directives, outlining their making, validity, and effect.

Who it concerns

  • Individuals who require or may require assistance in decision-making.
  • Decision-making assistants, co-decision-makers, and attorneys under enduring powers of attorney.

Key points

  • A person's capacity is to be understood functionally.
  • The Circuit Court has exclusive jurisdiction for most matters under this Act, with some exceptions for the High Court.
  • The Act establishes a Director of the Decision Support Service to oversee and support the new decision-making frameworks.
  • It includes provisions for the review of capacity for wards who are adults and their discharge from wardship.
Legal text
Legal text

Assisted Decision-Making (Capacity) Act 2015 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.

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  2. ie)Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(
  3. s)or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2015 Assisted Decision-Making (Capacity) Act 2015 Assisted Decision-Making (Capacity) Act 2015 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 64 of 2015 ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 CONTENTS PART 1 Preliminary and General Section 1. Short title and commencement 2. Interpretation — general 3. Person’s capacity to be construed functionally 4. Circuit Court to have exclusive jurisdiction under this Act except for certain matters reserved for High Court, etc. 5. Laying of regulations 6. Expenses 7. Repeals PART 2 Principles that Apply before and during Intervention in respect of Relevant Persons 8. Guiding principles PART 3 Assisted Decision-Making 9. Definitions — Part 3 10. Decision-making assistance agreement 11. Persons who are not eligible to be decision-making assistants 12. Nullity 13. Disqualification as decision-making assistant 14. Performance of functions of decision-making assistant 15. Complaints in relation to decision-making assistants PART 4 Co-Decision-Making 16. Definitions — Part 4 17. Co-decision-making agreement 18. Persons who are not eligible to be co-decision-makers 19. Performance of functions of co-decision-maker 20. Nullity 21. Application for registration of co-decision-making agreement 22. Registration of co-decision-making agreement 23. Effect and proof of registration 24. Objections to registration 25. Register of co-decision-making agreements 26. Review of co-decision-making agreements 27. Reports by co-decision-maker 28. Variation of co-decision-making agreement 29. Revocation of co-decision-making agreement and removal from Register 30. Complaints in relation to co-decision-makers 31. Regulations 32. Applications to Court 33. Role of Director where nullity occurs 34. Offences in relation to co-decision-making agreements PART 5 Applications to Court in respect of Relevant Persons and Related Matters Chapter 1 Application of this Part 35. Application of this Part Chapter 2 Applications under this Part 36. Persons who may make applications to court under this Part, etc. Chapter 3 Declarations as to capacity, etc., and matters following declarations 37. Power of court to make declarations as to capacity, etc. Chapter 4 Decisions by court or decision-making representative appointed by court 38. Power of court to make orders and appoint decision-making representative, etc. 39. Persons who are not eligible to be decision-making representatives 40. Disqualification as decision-making representative 41. Performance of functions of decision-making representative 42. Remuneration and expenses 43. Scope of decision-making order or decision-making representation order relating to property and affairs 44. Restrictions on decision-making representatives 45. Register of decision-making representation orders 46. Reports by decision-making representative 47. Complaints in relation to decision-making representatives Chapter 5 Interim orders, reviews and expert reports 48. Interim orders 49. Review of declaration as respects capacity 50. Expert reports Chapter 6 Notification of Director of the Decision Support Service of declarations, etc., under this Part 51. Notification of Director of the Decision Support Service Chapter 7 Legal aid in respect of applications under this Part 52. Amendment of Act of 1995 PART 6 Wards 53. Definitions — Part 6 54. Review of capacity of wards who are adults 55. Declarations following review and discharge from wardship 56. Saver 57. Director and wards who are adults PART 7 Enduring Powers of Attorney 58. Interpretation — Part 7 59. Enduring power of attorney — general 60. Content of instrument creating an enduring power of attorney 61. Notice of execution of an enduring power of attorney 62. Scope of authority — personal welfare decisions 63. Scope of authority — property and affairs 64. Application to joint and joint and several attorneys 65. Persons who are not eligible to be attorneys 66. Disqualification of attorney 67. Function of court prior to registration 68. Application for registration of instrument creating enduring power 69. Registration of an instrument creating an enduring power of attorney 70. Effect and proof of registration 71. Objections to registration 72. Register of enduring powers 73. Revocation and variation of enduring power 74. Disclaimer by attorney 75. Reports by attorney 76. Complaints in relation to attorneys 77. Applications to court 78. Removal of instrument from the Register 79. Regulations 80. Offences in relation to enduring powers of attorney 81. Transitional provisions PART 8 Advance Healthcare Directives 82. Definitions — Part 8 83. Purpose of this Part 84. Making of advance healthcare directives, etc. 85. Validity and applicability of advance healthcare directive 86. Effect of advance healthcare directive 87. Designated healthcare representative 88. Functions and scope of authority of designated healthcare representatives 89. Role of courts 90. Offences in relation to advance healthcare directives 91. Codes of practice 92. Persons who may make applications to relevant court under this Part, etc. 93. Review of this Part PART 9 Director of the Decision Support Service Chapter 1 Appointment, functions and terms and conditions of Director 94. Appointment of Director 95. Functions of Director 96. Investigations by Director 97. Terms and conditions of Director Chapter 2 Staff of Director of the Decision Support Service 98. Staff of Director of the Decision Support Service Chapter 3 Special visitors, general visitors, court friends and panels 99. Special visitors and general visitors 100. Court friends 101. Panels to be established by the Director Chapter 4 Reports by Director and codes of practice 102. Reports by Director 103. Codes of practice PART 10 Detention Matters 104. Definitions — Part 10 105. Panel of independent consultant psychiatrists to be established by Mental Health Commission 106. Detention-related safeguards 107. Review of detention orders in certain circumstances (approved centres) 108. Review of detention orders in certain circumstances (non-approved centres) PART 11 Convention on International Protection of Adults Chapter 1 Preliminary 109. Interpretation — Part 11 110. Convention given effect 111. Countries, territories and nationals 112. Protective measures 113. Central authority Chapter 2 Jurisdiction of competent authority 114. Scope of jurisdiction 115. Provisions supplementary to section 114 116. Exercise of jurisdiction Chapter 3 Applicable law 117. Applicable law 118. Provisions supplementary to section 117 119. Enduring powers of attorney, etc. 120. Disapplication or modification of enduring power of attorney, etc. 121. Protection of third parties 122. Mandatory rules 123. Public policy Chapter 4 Recognition and enforcement 124. Recognition 125. Application to High Court or court for declaration on measure 126. Provisions supplementary to sections 124 and 125 127. Enforcement 128. Measures taken in relation to those aged under 18 129. Review of measures taken outside State 130. Rules of court Chapter 5 Co-operation 131. Proposal for cross-border placement 132. Proposal received by central authority under Article 33 of the Convention 133. Requests to be communicated through central authority 134. Adults in danger, etc. 135. Circumstances in which co-operation is prohibited PART 12 Miscellaneous 136. Patients whose treatment is regulated by Part 4 of Act of 2001 137. Payment for necessary goods and services 138. Consent and capacity in specific matters 139. Application under Part 5, 7 or 8 to be heard in presence of relevant person or persons concerned 140. Wills 141. Appeals 142. Amendment of section 26A of Courts (Supplemental Provisions) Act 1961 143. Amendment of Civil Registration Act 2004 144. Amendment of Act of 2001 145. Offence of ill-treatment or wilful neglect 146. Review of this Act SCHEDULE Convention on the International Protection of Adults Acts Referred to Civil Legal Aid Act 1995 (No. 32) Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No. 24) Civil Registration Act 2004 (No. 3) Companies Act 2014 (No. 38) Courts (Supplemental Provisions) Act 1961 (No. 39) Courts and Court Officers Act 2009 (No. 36) Criminal Law (Insanity) Act 2006 (No. 11) Criminal Law (Insanity) Act 2010 (No. 40) Criminal Law (Suicide) Act 1993 (No. 11) Domestic Violence Act 1996 (No. 1) Health Act 2007 (No. 23) Health and Social Care Professionals Act 2005 (No. 27) Local Government Act 2001 (No. 37) Lunacy Regulation (Ireland) Act 1871 (34 & 35 Vict., c. 22) Marriage of Lunatics Act 1811 (51 Geo. 3) c.37 Medical Practitioners Act 2007 (No. 25) Mental Health Act 2001 (No. 25) Nursing Homes Support Scheme Act 2009 (No. 15) Personal Insolvency Act 2012 (No. 44) Powers of Attorney Act 1996 (No. 12) Public Service Management (Recruitment and Appointments) Act 2004 (No. 33) Sale of Goods Act 1893 (56 & 57 Vict., c. 71) Succession Act 1965 (No. 27) Number 64 of 2015 ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 An Act to provide for the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or IN THE FUTURE, HAVING REGARD, INTER ALIA, TO THE PROTECTIONS AFFORDED BY THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS DONE AT ROME ON THE 4TH DAY OF NOVEMBER 1950 AS IT APPLIES IN THE STATE; to provide for the appointment by such persons of other persons to assist them in decision-making or to make decisions jointly with such persons; to provide for the making of applications to the Circuit Court or High Court in respect of such persons, including seeking the appointment by the Circuit Court of decision-making representatives for such persons; TO PROVIDE FOR THE MAKING OF ADVANCE HEALTHCARE DIRECTIVES BY PERSONS OF THEIR WILL AND PREFERENCES CONCERNING MEDICAL TREATMENT DECISIONS SHOULD SUCH A PERSON SUBSEQUENTLY LACK CAPACITY; TO PROVIDE FOR THE APPOINTMENT IN ADVANCE HEALTHCARE DIRECTIVES OF DESIGNATED HEALTHCARE REPRESENTATIVES WITH THE POWER TO, inter alia, ENSURE THAT THE ADVANCE HEALTHCARE DIRECTIVES CONCERNED ARE COMPLIED WITH; to provide for the appointment and functions of the Director of the Decision Support Service in respect of persons who require or may shortly require assistance in exercising their decision-making capacity; to provide for the amendment of the law relating to enduring powers of attorney; to provide for the ratification by the State of the Convention on the International Protection of Adults; and to provide for related matters. [30 th December, 2015] Be it enacted by the Oireachtas as follows: PART 1 Preliminary and General Short title and commencement 1.

(1)This Act may be cited as the Assisted Decision-Making (Capacity) Act 2015.
(2)Subject to subsection
(3), this Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Health, may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.
(3)Part 8 and the other provisions of this Act in so far as they relate to an advance healthcare directive or designated healthcare representative, or both, shall come into operation on such day or days as the Minister for Health, after consultation with the Minister, may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions. Interpretation — general 2.
(1)In this Act— “act” includes a decision (howsoever described), an omission and a course of conduct; “Act of 1965” means the Succession Act 1965 ; “Act of 1995” means the Civil Legal Aid Act 1995 ; “Act of 1996” means the Powers of Attorney Act 1996 ; “Act of 2001” means the Mental Health Act 2001 ; “Act of 2014” means the Companies Act 2014 ; “advance healthcare directive” shall be construed in accordance with section 82 ; “approved nursing home” has the meaning assigned to it by section 3 of the Nursing Homes Support Scheme Act 2009 ; “attorney” has the meaning assigned to it by section 59
(1); “attorney under the Act of 1996” means a person appointed under an enduring power under the Act of 1996; “capacity” means decision-making capacity and shall be construed in accordance with section 3 ; “child” includes a step-child; “co-decision-maker” has the meaning assigned to it by section 16 ; “co-decision-making agreement” has the meaning assigned to it by section 16 ; “co-decision-maker appointer” has the meaning assigned to it by section 16 ; “cohabitant” means cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ; “court” means Circuit Court; “court friend”, in relation to a relevant person, means a person appointed by the Director pursuant to section 100
(1)to be a court friend for the relevant person; “customary occasion” means— (
  1. a)the occasion or anniversary of a birth, marriage or civil partnership, or (
  2. b)any other occasion on which gifts are customarily made within families or among friends or associates; “debt settlement arrangement” has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012 ; “decision” includes a class of decisions; “decision-making assistant” has the meaning assigned to it by section 9 ; “decision-making assistance agreement” has the meaning assigned to it by section 9 ; “decision-making assistant appointer” has the meaning assigned to it by section 9 ; “decision-making order” means an order under section 38
(2)(a) as the order is in force from time to time; “decision-making representative”, in relation to a relevant person, means a person appointed pursuant to a decision-making representation order to make one or more than one decision specified in the order on behalf of the relevant person; “decision-making representation order ”means an order under section 38
(2)(b) as the order is in force from time to time; “designated centre” has the meaning it has in section 2 of the Health Act 2007 ; “designated healthcare representative” has the meaning assigned to it by section 82 ; “Director” has the meaning given to it in section 94 ; “enduring power of attorney” has the meaning assigned to it by section 59
(2); “enduring power under the Act of 1996” means an enduring power referred to in section 4 of the Act of 1996 which was created in accordance with the provisions of that Act; “general visitor” means a person appointed to be a general visitor by the Director pursuant to section 99
(1); “guiding principles” means the principles set out in section 8
(2)to
(10); “healthcare professional” means a member of any health or social care profession whether or not the profession is a designated profession within the meaning of section 3 of the Health and Social Care Professionals Act 2005 ; “intervener”, in relation to an intervention in respect of a relevant person, means the person referred to in paragraph (a), (b), (c), (
  1. d)or (
  2. e)of the definition of “intervention” making the intervention; “intervention”, in relation to a relevant person, means an action taken under this Act, orders made under this Act or directions given under this Act in respect of the relevant person by— (
  3. a)the court or High Court, (
  4. b)a decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative, (
  5. c)the Director, (
  6. d)a special visitor or general visitor, or (
  7. e)a healthcare professional; “legal practitioner” means a person who is a practising barrister or practising solicitor; “matter concerned”, in relation to a relevant person, means— (
  8. a)in the case of a relevant person who falls within paragraph (
  9. a)of the definition of “relevant person”, the matter or matters in respect of which the person’s capacity is in question or may shortly be in question, and (
  10. b)in the case of a relevant person who falls within paragraph (
  11. b)of the definition of “relevant person”, the matter or matters in respect of which the person lacks capacity; “Minister” means the Minister for Justice and Equality; “owner”, in relation to a designated centre or mental health facility, includes a person managing a designated centre or mental health facility, or a director (including a shadow director within the meaning of section 222 of the Act of 2014) of, or a shareholder in or an employee or agent of, a company which owns or manages such a centre or facility; “person who lacks capacity” means a relevant person who falls within paragraph (
  12. b)of the definition of “relevant person” but only in relation to the matter or matters by virtue of which he or she falls within that paragraph; “personal insolvency arrangement” has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012 ; “personal welfare”, in relation to a relevant person, means one or more of the following matters: (
  13. a)accommodation, including whether or not the relevant person should live in a designated centre ; (
  14. b)participation by the relevant person in employment, education or training; (
  15. c)participation by the relevant person in social activities; (
  16. d)decisions on any social services provided or to be provided to the relevant person; (
  17. e)healthcare; (
  18. f)other matters relating to the relevant person’s well-being; “property and affairs”, in relation to a relevant person, means one or more of the following matters: (
  19. a)the custody, control and management of some or all of the relevant person’s property or property rights; (
  20. b)the sale, exchange, mortgaging, charging, gift or other disposition of the relevant person’s property; (
  21. c)the acquisition of property by the relevant person, or on his or her behalf; (
  22. d)the carrying on, on behalf of the relevant person, of any profession, trade or business which may lawfully be carried on by a person other than the relevant person; (
  23. e)the making of a decision which will have the effect of dissolving a partnership in which the relevant person is a partner; (
  24. f)the carrying out of any contract entered into by the relevant person; (
  25. g)the discharge of the relevant person’s debts, tax and duty liabilities and obligations or other obligations; (
  26. h)the execution or exercise of any of the powers or discretions vested in the relevant person as a tenant for life; (
  27. i)providing, to the extent that the relevant person might have been expected to do so, for the needs of a decision-making assistant, a co-decision-maker, an attorney, a designated healthcare representative or a decision-making representative for the relevant person or of other persons; (
  28. j)the conduct of proceedings before any court or tribunal, whether in the name of the relevant person or on his or her behalf; (
  29. k)making an application for housing, social welfare or other benefits or otherwise protecting or advancing the interests of the relevant person in relation to those matters; “registered medical practitioner” has the meaning assigned to it by section 2 of the Medical Practitioners Act 2007 ; “registered provider” has the meaning assigned to it by section 2 of the Health Act 2007 ; “relevant decision”— (
  30. a)in relation to a decision made, or to be made, by a decision-making assistant appointer with the assistance of a decision-making assistant for that appointer, means a decision on a matter the subject of the decision-making assistance agreement which appointed that decision-making assistant and which falls within the scope of that agreement, (
  31. b)in relation to a decision made, or to be made, jointly by a co-decision-maker appointer and a co-decision-maker for that appointer, means a decision on a matter the subject of the co-decision-making agreement which appointed that co-decision-maker and which falls within the scope of that agreement, (
  32. c)in relation to a decision made, or to be made, by a court on behalf of a relevant person, means a decision on a matter the subject of the decision-making order and which falls within the scope of that order, (
  33. d)in relation to a decision made, or to be made, by a decision-making representative on behalf of a relevant person, means a decision on a matter the subject of the decision-making representation order which appointed that decision-making representative and which falls within the scope of that order, (
  34. e)in relation to a decision made, or to be made, by an attorney on behalf of a relevant person, means a decision on a matter the subject of the enduring power of attorney which appointed that attorney and which falls within the scope of that power, and (
  35. f)in relation to a decision made, or to be made, under an advance healthcare directive (and whether or not there is a designated healthcare representative under the directive), means a decision which falls within the scope of that directive; “relevant information”, in relation to a relevant person, means personal records relating to the relevant person or other information that the relevant person is entitled to and that is or are required in relation to a relevant decision; “relevant person” means— (
  36. a)a person whose capacity is in question or may shortly be in question in respect of one or more than one matter, (
  37. b)a person who lacks capacity in respect of one or more than one matter, or (
  38. c)a person who falls within paragraphs (
  39. a)and (
  40. b)at the same time but in respect of different matters, as the case requires; “relevant powers” has the meaning assigned to it by section 82; “safety or barring order” means a safety order or barring order under the Domestic Violence Act 1996 ; “special visitor” means a person appointed to be a special visitor by the Director pursuant to section 99
(1); “suitable”— (a) in relation to the appointment of a co-decision-maker for a relevant person, shall be construed in accordance with section 17
(2), and (b) in relation to the appointment of a decision-making representative for a relevant person, shall be construed in accordance with section 38
(5); “wardship court” has the meaning assigned to it by section 53 .
(2)For the purposes of this Act, persons (howsoever described in this Act) shall not be considered to have ceased cohabiting by reason only of— (
  1. a)one or both residing in or entering a designated centre or mental health facility, or (
  2. b)one or both residing in or entering an institution (of whatever kind) for purposes relating to— (
  3. i)a physical or mental condition of the person concerned, or (
  4. ii)the imprisonment, or the taking into lawful custody, of the person concerned. Person’s capacity to be construed functionally 3.
(1)Subject to subsections
(2)to
(6), for the purposes of this Act, a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.
(2)A person lacks the capacity to make a decision if he or she is unable— (
  1. a)to understand the information relevant to the decision, (
  2. b)to retain that information long enough to make a voluntary choice, (
  3. c)to use or weigh that information as part of the process of making the decision, or (
  4. d)to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.
(3)A person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means).
(4)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him or her from being regarded as having the capacity to make the decision.
(5)The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at another time.
(6)The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.
(7)For the purposes of this section, information relevant to a decision shall be construed as including information about the reasonably foreseeable consequences of— (
  1. a)each of the available choices at the time the decision is made, or (
  2. b)failing to make the decision. Circuit Court to have exclusive jurisdiction under this Act except for certain matters reserved for High Court, etc. 4.
(1)Subject to subsection
(3), sections 37 , 85
(6)(b) and 89
(2), Parts 6 , 10 and 11 , the Circuit Court shall have exclusive jurisdiction under this Act and the performance of the functions of that court conferred by this section shall be within the jurisdiction of the circuit of the Circuit Court and such jurisdiction shall be exercised by the circuit of the Circuit Court in which— (
  1. a)the relevant person the subject of an application under this Act is residing or carrying on business at the time the application is made, or (
  2. b)the relevant person the subject of an application under this Act has resided at any time during the period of 3 years immediately prior to the making of the application.
(2)An application to the Circuit Court under this Act may be made— (
  1. a)in such office of, or attached to, the Circuit Court within the circuit concerned, (
  2. b)in such combined court office (within the meaning of section 14 of the Courts and Court Officers Act 2009 ) within the circuit concerned, or (
  3. c)in such office of the Courts Service, within the circuit concerned, designated by the Courts Service for the purpose of this Act, as may be prescribed by rules of court.
(3)Notwithstanding any other provision of this Act— (
  1. a)any decision regarding the donation of an organ from a living donor shall, where the donor is a person who lacks capacity, be determined by the High Court, and (
  2. b)where an application in connection with the withdrawal of life-sustaining treatment from a person who lacks capacity comes before the courts for adjudication, that application shall be heard by the High Court.
(4)Nothing in this Act shall be construed as authorising any person to give consent for a non-therapeutic sterilisation procedure to be carried out on a person who lacks capacity. Laying of regulations
  1. Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. Expenses
  2. The expenses incurred by the Minister or the Minister for Health in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas. Repeals 7.
(1)The Marriage of Lunatics Act 1811 is repealed.
(2)Subject to the provisions of Part 6 , the Lunacy Regulation (Ireland) Act 1871 is repealed. PART 2 Principles that Apply before and during Intervention in respect of Relevant Persons Guiding principles 8.
(1)The principles set out in subsections
(2)to
(10)shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly.
(2)It shall be presumed that a relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2
(1)has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.
(3)A relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2
(1)shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.
(4)A relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2
(1)shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.
(5)There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person.
(6)An intervention in respect of a relevant person shall— (
  1. a)be made in a manner that minimises— (
  2. i)the restriction of the relevant person’s rights, and (
  3. ii)the restriction of the relevant person’s freedom of action, (
  4. b)have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property, (
  5. c)be proportionate to the significance and urgency of the matter the subject of the intervention, and (
  6. d)be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the intervention.
(7)The intervener, in making an intervention in respect of a relevant person, shall— (
  1. a)permit, encourage and facilitate, in so far as is practicable, the relevant person to participate, or to improve his or her ability to participate, as fully as possible, in the intervention, (
  2. b)give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable, (
  3. c)take into account— (
  4. i)the beliefs and values of the relevant person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and (
  5. ii)any other factors which the relevant person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable, (
  6. d)unless the intervener reasonably considers that it is not appropriate or practicable to do so, consider the views of— (
  7. i)any person named by the relevant person as a person to be consulted on the matter concerned or any similar matter, and (
  8. ii)any decision-making assistant, co-decision-maker, decision-making representative or attorney for the relevant person, (
  9. e)act at all times in good faith and for the benefit of the relevant person, and (
  10. f)consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant.
(8)The intervener, in making an intervention in respect of a relevant person, may consider the views of— (
  1. a)any person engaged in caring for the relevant person, (
  2. b)any person who has a bona fide interest in the welfare of the relevant person, or (
  3. c)healthcare professionals.
(9)In the case of an intervention in respect of a person who lacks capacity, regard shall be had to— (
  1. a)the likelihood of the recovery of the relevant person’s capacity in respect of the matter concerned, and (
  2. b)the urgency of making the intervention prior to such recovery.
(10)The intervener, in making an intervention in respect of a relevant person— (
  1. a)shall not attempt to obtain relevant information that is not reasonably required for making a relevant decision, (
  2. b)shall not use relevant information for a purpose other than in relation to a relevant decision, and (
  3. c)shall take reasonable steps to ensure that relevant information— (
  4. i)is kept secure from unauthorised access, use or disclosure, and (
  5. ii)is safely disposed of when he or she believes it is no longer required. PART 3 Assisted Decision-Making Definitions — Part 3 9. In this Part— “appointer” means a decision-making assistant appointer; “decision-making assistant”, in relation to an appointer, means the person who the appointer has, under section 10
(1), appointed to assist the appointer in making decisions on the appointer’s personal welfare or property and affairs, or both, in compliance with regulations made under section 10
(4); “decision-making assistance agreement” means a decision-making assistance agreement referred to in section 10
(2)as such agreement is in force from time to time; “decision-making assistant appointer” means a person who has, under section 10
(1), appointed another person to assist the first-mentioned person in making decisions on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with regulations made under section 10
(4). Decision-making assistance agreement 10.
(1)Subject to section 11 , a person who has attained the age of 18 years and who considers that his or her capacity is in question or may shortly be in question may appoint another person who has also attained that age to assist the first-mentioned person in making one or more than one decision on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with regulations made under subsection
(4).
(2)An appointment as a decision-making assistant shall be made in a decision-making assistance agreement which is in compliance with regulations made under subsection
(4).
(3)A decision-making assistance agreement may be revoked by the appointer or by the decision-making assistant at any time and, subject to agreement between the appointer and the decision-making assistant, may be varied at any time.
(4)The Minister shall make regulations as respects decision-making assistance agreements, including— (
  1. a)prescribing the form of a decision-making assistance agreement, (
  2. b)prescribing procedures and requirements relating to the execution, variation and revocation of a decision-making assistance agreement, (
  3. c)prescribing 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, (
  4. d)providing for the inclusion in a decision-making assistance agreement of the following statements: (
  5. i)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; and (
  6. ii)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, (
  7. e)specifying the personal welfare or property and affairs, or both, which may be specified in a decision-making assistance agreement, (
  8. f)providing for the attestation of the signatures of the appointer and decision-making assistant by a person other than the appointer or the proposed decision-making assistant, and (
  9. g)the giving by the appointer of notice of the execution, variation or revocation of a decision-making assistance agreement— (
  10. i)to the Director, and (
  11. ii)to other specified persons, and whether or not by reference to persons who, under this Act, are required to be notified of an application made under this Act.
(5)An appointer may, in the decision-making assistance agreement, appoint more than one person as a decision-making assistant and may specify that the decision-making assistants shall act— (
  1. a)jointly, (
  2. b)jointly and severally, or (
  3. c)jointly in respect of some matters and jointly and severally in respect of other matters. Persons who are not eligible to be decision-making assistants 11.
(1)A person shall not be eligible for appointment as a decision-making assistant if he or she— (
  1. a)has been convicted of an offence in relation to the person or property of the person who intends to appoint him or her, (
  2. b)has been the subject of a safety or barring order in relation to the person who intends to appoint him or her, (
  3. c)is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty, (
  4. d)is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (
  5. e)is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act, (
  6. f)is a person who is— (
  7. i)the owner or registered provider of a designated centre or mental health facility in which the person who intends to appoint him or her as decision-making assistant resides, or (
  8. ii)residing with, or an employee or agent 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 or her as decision-making assistant, (
  9. g)has been convicted of an offence under section 34 , 80 , 90 or 145 , or (
  10. h)previously acted as decision-making assistant for the person who intends to appoint a decision-making assistant and there was a finding by the court under this Part that he or she should not continue as decision-making assistant for that person.
(2)Subsection
(1)(c), (
  1. d)and (
  2. e)shall not apply where it is proposed to give the person functions relating to personal welfare only. Nullity 12. Where an event specified in any of paragraphs (
  3. a)to (
  4. c)occurs, a decision-making assistance agreement shall, with effect from the date on which the event occurs, be null and void to the extent that the decision-making assistance agreement relates to a relevant decision where there is, in respect of the relevant decision— (
  5. a)a decision-making order, a decision-making representation order or a co-decision-making agreement in relation to the appointer, (
  6. b)an advance healthcare directive made by the appointer and the appointer lacks capacity, or (
  7. c)an enduring power of attorney or enduring power under the Act of 1996 made by the appointer that has entered into force. Disqualification as decision-making assistant 13.
(1)A decision-making assistant shall, with effect from the date on which an event specified in paragraphs (
  1. a)to (
  2. c)occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the spouse of the appointer and subsequently— (
  3. a)the marriage is annulled or dissolved either— (
  4. i)under the law of the State, or (
  5. ii)under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State, (
  6. b)either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect, (
  7. c)a written agreement to separate is entered into between the spouses, or (
  8. d)subject to section 2
(2), the spouses separate and cease to cohabit for a continuous period of 12 months.
(2)A decision-making assistant shall, with effect from the date on which an event specified in paragraph (
  1. a)or (
  2. b)occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the civil partner of the appointer and subsequently— (
  3. a)the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either— (
  4. i)under the law of the State, or (
  5. ii)under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State, (
  6. b)a written agreement to separate is entered into between the civil partners, or (
  7. c)subject to section 2
(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.
(3)Subject to section 2
(2), a decision-making assistant shall, at the expiry of the period referred to in this subsection, and unless the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the cohabitant of the appointer and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.
(4)Subject to subsection
(5), where, subsequent to the appointment of a decision-making assistant— (
  1. a)the decision-making assistant is convicted of an offence in relation to the person or property of the appointer or the person or property of a child of the appointer, (
  2. b)a safety or barring order is made against the decision-making assistant in relation to the appointer or a child of the appointer, (
  3. c)the decision-making assistant becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty, (
  4. d)the decision-making assistant becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (
  5. e)the decision-making assistant becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act, (
  6. f)the decision-making assistant becomes— (
  7. i)the owner or registered provider of a designated centre or mental health facility in which the appointer resides, or (
  8. ii)a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the decision-making assistant is a spouse, civil partner, cohabitant, parent, child or sibling of the appointer, (
  9. g)the decision-making assistant is convicted of an offence under section 34 , 80 , 90 or 145 , or (
  10. h)the decision-making assistant— (
  11. i)enters into a decision-making assistance agreement as a relevant person, (
  12. ii)enters into a co-decision-making agreement as a relevant person, (iii) has an enduring power of attorney or enduring power under the Act of 1996 registered in respect of himself or herself, or (
  13. iv)becomes the subject of a declaration under section 37
(1), the decision-making assistant shall be disqualified from being a decision-making assistant for the appointer with effect from the date on which the decision-making assistant falls within any of paragraphs (a) to (h).
(5)Subsection
(4)(c), (
  1. d)and (
  2. e)shall not apply insofar as the decision-making assistant’s functions under the decision-making assistance agreement relate to personal welfare. Performance of functions of decision-making assistant 14.
(1)In exercising his or her functions as specified in the decision-making assistance agreement, the decision-making assistant shall— (
  1. a)assist the appointer to obtain the appointer’s relevant information, (
  2. b)advise the appointer by explaining relevant information and considerations relating to a relevant decision, (
  3. c)ascertain the will and preferences of the appointer on a matter the subject or to be the subject of a relevant decision and assist the appointer to communicate them, (
  4. d)assist the appointer to make and express a relevant decision, and (
  5. e)endeavour to ensure that the appointer’s relevant decisions are implemented.
(2)A decision-making assistant shall not make a decision on behalf of the appointer.
(3)A relevant decision taken by the appointer with the assistance of the decision-making assistant is deemed to be taken by the appointer for all purposes. Complaints in relation to decision-making assistants 15.
(1)A person may make a complaint in writing to the Director concerning one or both of the following matters: (
  1. a)that a decision-making assistant has acted, is acting, or is proposing to act outside the scope of his or her functions as specified in the decision-making assistance agreement; (
  2. b)that a decision-making assistant is unable to perform his or her functions under the decision-making assistance agreement; (
  3. c)that fraud, coercion or undue pressure was used to induce the appointer to enter into the co-decision-making agreement.
(2)Following the receipt of a complaint under subsection
(1), the Director shall carry out an investigation of the matter which is the subject of the complaint and— (
  1. a)where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the complaint, or (
  2. b)where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.
(3)A person who receives a notification under subsection
(2)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
(4)The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to the court for a determination in relation to any matter specified in subsection
(1).
(5)The court may— (a) pursuant to an application to it under subsection
(2)(a) or
(4), or (b) pursuant to an appeal under subsection
(3), make a determination in relation to a matter specified in subsection
(1)and may, if it considers it appropriate, determine that a decision-making assistant shall no longer act as such in relation to the appointer concerned. PART 4 Co-Decision-Making Definitions — Part 4 16. In this Part— “appointer” means a co-decision-maker appointer; “authenticated”, in relation to a co-decision-making agreement which is registered, means bearing the signature of the Director, the date on which his or her signature was applied and the date of registration of the co-decision-making agreement; “co-decision-maker”, in relation to an appointer, means the suitable person who the appointer appoints under section 17 , to jointly make with the appointer decisions on the appointer’s personal welfare or property and affairs, or both, in compliance with this Part and regulations made under section 31; “co-decision-maker appointer” means a person who appoints a co-decision-maker under section 17 ; “co-decision-making agreement” means a co-decision-making agreement referred to in section 17
(3); “suitable” shall be construed in accordance with section 17
(2). Co-decision-making agreement 17.
(1)Subject to the provisions of this section and section 18 , a person who has attained the age of 18 years and who considers that his or her capacity is in question or may shortly be in question may appoint a suitable person who has also attained that age to jointly make with the first-mentioned person one or more than one decision on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with this Part and regulations made under section 31 .
(2)A person is suitable for appointment as a co-decision-maker if he or she— (
  1. a)is a relative or friend of the appointer who has had such personal contact with the appointer over such period of time that a relationship of trust exists between them, and (
  2. b)is able to perform his or her functions under the co-decision-making agreement.
(3)An appointment as a co-decision-maker shall be made in writing in a co-decision-making agreement that is in compliance with this section and regulations made under section 31 .
(4)Notwithstanding the definition of “property and affairs” in section 2 an appointer shall not include in a co-decision-making agreement provision for the disposal of his or her property by way of gift.
(5)A co-decision-making agreement shall contain the following: (
  1. a)the name, date of birth and contact details of the appointer; (
  2. b)subject to subsection
(6), the signature of the appointer and the date that he or she signed the agreement; (
  1. c)the name, date of birth and contact details of the co-decision-maker; (
  2. d)the signature of the co-decision-maker and the date that he or she signed the agreement; (
  3. e)the signatures of the 2 witnesses referred to in subsection
(7)(a).
(6)A co-decision-making agreement may be signed on behalf of the appointer by a person who has attained the age of 18 years and who is not the co-decision-maker or one of the witnesses referred to in subsection
(7)(
  1. a)if— (
  2. a)the appointer is unable to sign the agreement, (
  3. b)the appointer is present and directs that the agreement be signed on his or her behalf by that person, and (
  4. c)the signature of the person is witnessed in accordance with subsection
(7)(b).
(7)(a) The appointer, or the person signing on his or her behalf in accordance with subsection
(6), and the co-decision-maker shall sign the co-decision-making agreement in the presence of each other and in the presence of 2 witnesses— (
  1. i)each of whom has attained the age of 18 years, (
  2. ii)of whom at least one is not an immediate family member of the appointer or the co-decision-maker, and (iii) neither of whom is an employee or agent of the co-decision-maker. (
  3. b)Each of the witnesses referred to in paragraph (
  4. a)shall witness the signature of the appointer, or the person signing on his or her behalf, and the signature of the co-decision-maker by applying his or her own signature to the co-decision-making agreement.
(8)An appointer may appoint more than one person as a co-decision-maker but may not— (
  1. a)appoint in the same co-decision-making agreement more than one person as a co-decision-maker, or (
  2. b)appoint in a co-decision-making agreement a co-decision-maker in respect of a relevant decision which is the subject of another co-decision-making agreement.
(9)The Director shall, on a request being made of him or her by a person who intends to appoint a co-decision-maker or a person who is proposed as a co-decision-maker, or both, provide information to the person requesting with regard to making and entering into the co-decision-making agreement.
(10)In this section, “immediate family member” means— (
  1. a)a spouse, civil partner, or cohabitant, (
  2. b)a child, son-in-law or daughter-in-law, (
  3. c)a parent, step-parent, mother-in-law or father-in-law, (
  4. d)a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law, (
  5. e)a grandparent or grandchild, (
  6. f)an aunt or uncle, or (
  7. g)a nephew or niece. Persons who are not eligible to be co-decision-makers 18.
(1)Subject to subsection
(2), a person shall not be eligible for appointment as a co-decision-maker if he or she— (
  1. a)has been convicted of an offence in relation to the person or property of the person who intends to appoint a co-decision-maker, or the person or property of a child of that person, (
  2. b)has been the subject of a safety or barring order in relation to the person who intends to appoint a co-decision-maker or a child of that person, (
  3. c)is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty, (
  4. d)is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (
  5. e)is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act, (
  6. f)is a person who is— (
  7. i)the owner or registered provider of a designated centre or mental health facility in which the person who intends to appoint him or her as co-decision- maker resides, or (
  8. ii)residing with, or an employee or agent 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 or her as co-decision-maker, (
  9. g)has been convicted of an offence under section 34 , 80 , 90 or 145 , or (
  10. h)previously acted as co-decision-maker for the person who intends to appoint a co-decision-maker and there was a finding by the court that he or she should no longer act as co-decision-maker for that person.
(2)Paragraphs
(1)(c), (
  1. d)and (
  2. e)shall not apply where the co-decision-making agreement relates only to relevant decisions concerning personal welfare. Performance of functions of co-decision-maker 19.
(1)In exercising his or her functions as specified in the co-decision-making agreement, a co-decision-maker shall— (
  1. a)advise the appointer by explaining relevant information and considerations relating to a relevant decision, (
  2. b)ascertain the will and preferences of the appointer on a matter the subject of, or to be the subject of, a relevant decision and assist the appointer with communicating the appointer’s will and preferences, (
  3. c)assist the appointer to obtain the appointer’s relevant information, (
  4. d)discuss with the appointer the known alternatives and likely outcomes of a relevant decision, (
  5. e)make a relevant decision jointly with the appointer, and (
  6. f)make reasonable efforts to ensure that a relevant decision is implemented as far as practicable.
(2)A co-decision-maker shall be entitled to be reimbursed out of the assets of the appointer in respect of his or her fair and reasonable costs and expenses which are— (
  1. a)reasonably incurred in performing his or her functions as co-decision-maker, (
  2. b)vouched for in a manner acceptable to the Director, and (
  3. c)included in a report submitted by the co-decision-maker under section 27 .
(3)A co-decision-maker shall not be entitled to remuneration for performing his or her functions as co-decision-maker.
(4)Where— (
  1. a)after an application has been made under section 21 to register a co-decision- making agreement but before registration of the agreement, or (
  2. b)after registration of a co-decision-making agreement, the co-decision-maker or any person specified in section 21
(3)has reason to believe that the appointer’s capacity has— (
  1. i)deteriorated to the extent that he or she lacks capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement even with the assistance of a co-decision-maker, or (
  2. ii)improved to the extent that he or she has capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement, he or she shall promptly inform the Director of that belief.
(5)In this Part, a reference to a relevant decision being made jointly means that a co-decision-maker— (
  1. a)shall acquiesce with the wishes of the appointer in respect of the relevant decision, and (
  2. b)shall not refuse to sign a document referred to in section 23
(3), unless it is reasonably fores eeable that such acquiescence or signature, as the case may be, will result in serious harm to the appointer or to another person.
(6)A co-decision-maker shall not have authority to make decisions jointly with a relevant person other than the relevant decisions specified in the co-decision-making agreement.
(7)Where an appointer has more than one co-decision-maker, each of the co-decision-makers shall exercise his or her functions in a manner which is not inconsistent with the functions exercisable by another co-decision-maker. Nullity 20.
(1)Where an event specified in any of paragraphs (
  1. a)to (
  2. c)occurs, a co-decision-making agreement shall, with effect from the date on which the event occurs, be null and void to the extent that the co-decision-making agreement relates to a relevant decision where there is, in respect of the relevant decision— (
  3. a)a decision-making order or a decision-making representation order in relation to the appointer, (
  4. b)an advance healthcare directive made by the appointer and the appointer lacks capacity, or (
  5. c)an enduring power of attorney or enduring power under the Act of 1996 made by the appointer that has entered into force.
(2)A co-decision-making agreement shall, with effect from the date on which an event specified in any of paragraphs (
  1. a)to (
  2. c)occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the spouse of the appointer and subsequently— (
  3. a)the marriage is annulled or dissolved either— (
  4. i)under the law of the State, or (
  5. ii)under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State, (
  6. b)either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect, (
  7. c)a written agreement to separate is entered into between the spouses, or (
  8. d)subject to section 2
(2), the spouses separate and cease to cohabit for a continuous period of 12 months.
(3)A co-decision-making agreement shall, with effect from the date on which an event specified in paragraph (
  1. a)or (
  2. b)occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the civil partner of the appointer and subsequently— (
  3. a)the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either— (
  4. i)under the law of the State, or (
  5. ii)under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State, (
  6. b)a written agreement to separate is entered into between the civil partners, or (
  7. c)subject to section 2
(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.
(4)Subject to section 2
(2), a co-decision-making agreement shall, at the expiry of the period referred to in this subsection, and unless it provides otherwise, be null and void where the co-decision-maker is the cohabitant of the appointer and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.
(5)To the extent that a co-decision-making agreement includes a matter referred to in section 17
(4), it shall be null and void.
(6)Subject to subsection
(7), where, subsequent to the registration of a co-decision-making agreement — (
  1. a)the co-decision-maker is convicted of an offence in relation to the person or property of the appointer or the person or property of a child of the appointer, (
  2. b)a safety or barring order is made against the co-decision-maker in relation to the appointer or a child of the appointer, (
  3. c)the co-decision-maker becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty, (
  4. d)the co-decision-maker becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (
  5. e)the co-decision-maker becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act, (
  6. f)the co-decision-maker becomes— (
  7. i)the owner or registered provider of a designated centre or mental health facility in which the appointer resides, or (
  8. ii)a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the co-decision-maker is the spouse, civil partner, cohabitant, parent, child or sibling of the appointer, (
  9. g)the co-decision-maker is convicted of an offence under section 34 , 80 , 90 or 145 , (
  10. h)the co-decision-maker— (
  11. i)enters into a decision-making assistance agreement as a relevant person, (
  12. ii)enters into a co-decision-making agreement as a relevant person, (iii) has an enduring power of attorney or enduring power under the Act of 1996 registered in respect of himself or herself, or (
  13. iv)becomes the subject of a declaration under section 37
(1), or (
  1. i)the court finds that the co-decision-maker should no longer act as co-decision-maker for the appointer, the co-decision-making agreement concerned shall be null and void with effect from the date on which the co-decision-maker falls within any of paragraphs (
  2. a)to (i).
(7)A co-decision-making agreement shall not be null and void pursuant to paragraphs
(6)(c), (
  1. d)and (
  2. e)to the extent that it relates to relevant decisions on personal welfare.
(8)Where a co-decision-making agreement which stands registered becomes null and void in whole or to the extent that it relates to one or more relevant decisions, the co-decision-maker or, in the case of nullity pursuant to subsection
(6)(h)(iii) or (iv), his or her attorney, decision-making representative or the court, as the case may be, shall notify the Director of such nullity and the particulars relating thereto.
(9)The nullity of a co-decision-making agreement or of a relevant decision contained therein shall not operate to prevent a person who relied on the agreement or the relevant decision from recovering damages in respect of any loss incurred by him or her as a result of that reliance. Application for registration of co-decision-making agreement 21.
(1)A co-decision-making agreement shall not enter into force until it has been registered in accordance with section 22 .
(2)An application to register a co-decision-making agreement shall be made not later than 5 weeks from the date the agreement was signed, in such form and accompanied by such fee as shall be prescribed by regulations made under section 31 and, subject to section 17
(6), shall be signed by both the appointer and the co-decision-maker (in this section referred to as “the applicants”).
(3)The applicants shall, at the same time as making an application to register a co-decision-making agreement under this section, jointly give notice, in such form as shall be prescribed by regulations made under section 31 , of the application and give a copy of the co-decision-making agreement to the following persons: (
  1. a)the spouse or civil partner (if any) of the appointer; (
  2. b)the cohabitant (if any) of the appointer; (
  3. c)any children of the appointer who have attained the age of 18 years; (
  4. d)any decision-making assistant for the appointer; (
  5. e)any decision-making representative for the appointer; (
  6. f)any attorney for the appointer; (
  7. g)any designated healthcare representative for the appointer; (
  8. h)any co-decision-maker of the appointer under another co-decision-making agreement.
(4)An application under subsection
(2)shall be accompanied by the following: (
  1. a)the co-decision-making agreement; (
  2. b)a statement by the appointer that he or she— (
  3. i)understands the implications of entering into the co-decision-making agreement and has read and understands the information contained therein, or has had such information explained to him or her, (
  4. ii)wishes to enter into the co-decision-making agreement with the co-decision-maker, (iii) is aware that he or she may, with the consent of the co-decision-maker, vary the co-decision-making agreement, and (
  5. iv)is aware that he or she may revoke the co-decision-making agreement; (
  6. c)a statement by the co-decision-maker that he or she— (
  7. i)understands the implications of entering into the co-decision-making agreement and has read and understands the information contained therein, (
  8. ii)understands and undertakes to act in accordance with his or her functions as specified in the co-decision-making agreement, (iii) understands and undertakes to act in accordance with the guiding principles, (
  9. iv)understands and undertakes to comply with the reporting obligations under section 27 , and (
  10. v)understands the provisions of this Part relating to variation, revocation and nullity of co-decision-making agreements; (
  11. d)a statement as to why the less intrusive measure of a decision-making assistance agreement was not chosen; (
  12. e)details of any existing decision-making assistance agreement, co-decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the appointer; (
  13. f)a statement by a registered medical practitioner and a statement by such other healthcare professional of a class as shall be prescribed by regulations made under section 31 that in their opinion— (
  14. i)the appointer has capacity to make a decision to enter into the co-decision- making agreement, (
  15. ii)the appointer requires assistance in exercising his or her decision-making in respect of the relevant decisions contained in the co-decision-making agreement, and (iii) the appointer has capacity to make the relevant decisions specified in the co-decision-making agreement with the assistance of the co-decision-maker; (
  16. g)references, in such form as shall be prescribed by regulations made under section 31 , by 2 persons as to the personal character of the co-decision-maker; (
  17. h)a copy of any notice given pursuant to subsection
(3); and (i) the appropriate fee, as prescribed by regulations under section 31 . Registration of co-decision-making agreement 22.
(1)On receipt of an application under section 21 , the Director shall review the application and any objections received under section 24 and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met: (a) the co-decision-making agreement is in accordance with section 17 ; (b) the co-decision-maker is a suitable person within the meaning of section 17
(2); (
  1. c)the co-decision-maker is eligible for appointment within the meaning of section 18 ; (
  2. d)the application is in accordance with section 21 (or section 28 in the case of an application to register a varied co-decision-making agreement); (
  3. e)the co-decision-making agreement is in accordance with the will and preferences of the appointer; and (
  4. f)the appointer understands the implications of having entered into the co-decision-making agreement.
(2)Following the review under subsection
(1)and subject to section 24 , the Director shall— (
  1. a)where he or she is of the view that the criteria set out in paragraphs (
  2. a)to (
  3. f)of subsection
(1)are satisfied, register the co-decision-making agreement and notify the applicants of the date on which it was registered, or (
  1. b)where he or she is of the view that one or more of the criteria set out in paragraphs (
  2. a)to (
  3. f)of subsection
(1)are not satisfied, notify the applicants of that view, provide reasons for that view and give the applicants an opportunity, within a reasonable timeframe specified by the Director, to respond.
(3)Following a review of any response submitted by the applicants pursuant to subsection
(2)(
  1. b)and subject to section 24 , the Director shall— (
  2. a)where he or she is of the view that the criteria set out in paragraphs (
  3. a)to (
  4. f)of subsection
(1)are satisfied, register the co-decision-making agreement and notify the applicants of the date on which it was registered, or (
  1. b)where he or she remains of the view that one or more of the criteria set out in paragraphs (
  2. a)to (
  3. f)of subsection
(1)are not satisfied, refuse to register the co-decision-making agreement concerned and notify the applicants of that fact.
(4)One or both of the applicants whose application to register a co-decision-making agreement is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court.
(5)Upon an appeal under subsection
(4), the court may— (
  1. a)require the Director to register the co-decision-making agreement concerned, (
  2. b)affirm the decision of the Director, or (
  3. c)make such other order as it considers appropriate.
(6)Following the registration of a co-decision-making agreement, the Director shall send an authenticated copy of the agreement to the applicants.
(7)A document purporting to be a copy of a co-decision-making agreement that has been authenticated by the Director shall be evidence of the contents of the agreement and the date upon which it was registered. Effect and proof of registration 23.
(1)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.
(2)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.
(3)(
  1. a)Subject to paragraph (b), 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. (
  2. b)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. Objections to registration 24.
(1)Any of the persons referred to in section 21
(3)may, not later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed registration.
(2)An objection shall be in such form and shall be accompanied by such fee as shall be prescribed by regulations made under section 31 and may be made on one or more of the following grounds: (
  1. a)that the co-decision-making agreement was not signed or witnessed in accordance with section 17 ; (
  2. b)that the appointer lacks capacity to make a decision to enter into the co-decision-making agreement; (
  3. c)that the appointer has capacity to make the relevant decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker; (
  4. d)that the appointer lacks capacity to make the relevant decisions which are the subject of the co-decision-making agreement even with the assistance of a co-decision-maker; (
  5. e)that entry into the co-decision-making agreement is not in accordance with the will and preferences of the appointer; (
  6. f)that the co-decision-maker is not a suitable person within the meaning of section 17
(2)or is not eligible for appointment by virtue of section 18 ; (
  1. g)that a false statement is included in the application to register the co-decision-making agreement; (
  2. h)that fraud, coercion or undue influence was employed to induce the appointer to enter into the co-decision-making agreement.
(3)Where the Director receives an objection in accordance with subsection
(2), which has been made in the period specified in subsection
(1), he or she shall— (
  1. a)review the objection, (
  2. b)consult with the appointer and co-decision-maker and give them a reasonable opportunity to respond to the objection, and (
  3. c)consult with such other persons as he or she considers relevant, and shall— (
  4. i)where he or she is of the view that the objection is not well founded, notify the person who made the objection of his or her view, provide reasons for that view and proceed, subject to section 22
(1), to register the co-decision-making agreement concerned, or (ii) where he or she is of the view that the objection is well founded, notify the person who made the objection of his or her view and make an application to the court for a determination as to whether or not the co-decision-making agreement concerned should be registered.
(4)The court, pursuant to an application made to it under subsection
(3)(ii), may— (
  1. a)require the Director to register the co-decision-making agreement, (
  2. b)declare that the co-decision-making agreement concerned should not be registered, or (
  3. c)make such other declaration or order as it considers appropriate.
(5)A person who makes an objection under subsection
(1)may, not later than 21 days after the date of issue of the notification by the Director under subsection
(3)(i), appeal a decision to register the co-decision-making agreement concerned to the court.
(6)Upon appeal under subsection
(5), the court may— (
  1. a)require the Director to remove the co-decision-making agreement concerned from the Register, (
  2. b)affirm the decision of the Director, or (
  3. c)make such other declaration or order as it considers appropriate. Register of co-decision-making agreements 25.
(1)The Director shall establish and maintain a Register (in this Part referred to as “the Register”) of co-decision-making agreements.
(2)The Register shall be in such form as the Director considers appropriate.
(3)The Director shall make the Register available for inspection by— (
  1. a)a body or class of persons prescribed by regulations made under section 31 for this purpose, and (
  2. b)any person who satisfies the Director that he or she has a legitimate interest in inspecting the Register.
(4)The Director may issue an authenticated copy of a co-decision-making agreement, or part thereof, on the Register on payment of the prescribed fee to— (
  1. a)a body or class of persons prescribed by regulations made under section 31 for this purpose, and (
  2. b)a person who satisfies the Director that he or she has a legitimate interest in obtaining a copy.
(5)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, from him or her. Review of co-decision-making agreements 26.
(1)The Director shall conduct a review of each co-decision-making agreement on the Register not earlier than 3 months before and not later than 3 months after the first anniversary of the date of registration of the agreement and thereafter at intervals not exceeding 3 years.
(2)In conducting a review under this section, the Director shall carry out such reasonable enquiries, including, in particular, consulting with the appointer and co-decision-maker as well as any special visitor or general visitor who has had contact with the appointer or co-decision-maker, as he or she considers necessary to determine whether the following criteria are met: (a) paragraphs (e) and (f) of section 22
(1)continue to apply; (
  1. b)the co-decision-making agreement does not fall within section 20 ; (
  2. c)the co-decision-maker has performed and continues to be likely to perform his or her functions as co-decision-maker; (
  3. d)the co-decision-maker has complied with the requirements under this Act that are relevant to him or her; (
  4. e)the matters provided for in subparagraphs (
  5. ii)and (iii) of section 21
(4)(f) continue to apply.
(3)In order to determine whether the matters provided for in subparagraphs (ii) and (iii) of section 21
(4)(
  1. f)continue to apply, the Director shall require statements to that effect to be submitted to him or her by— (
  2. a)the same registered medical practitioner who provided the original statement under section 21
(4)(
  1. f)or, where that practitioner is not reasonably available, another registered medical practitioner, and (
  2. b)the same healthcare professional who provided the original statement under section 21
(4)(f) or, where that professional is not reasonably available, another healthcare professional of the class prescribed by regulations made under section 31 .
(4)Where, following a review under subsection
(1), the Director is of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection
(2)does not apply, he or she shall notify the co-decision-maker and the appointer of that view, provide reasons for same and give the appointer and the co-decision-maker an opportunity to respond within a time period specified by the Director.
(5)Where, at the expiry of the period for response specified under subsection
(4)and following a review of any response submitted by the appointer or the co-decision-maker or both pursuant to that subsection, the Director remains of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection
(2)does not apply, he or she shall notify the appointer and the co-decision-maker of that view and make an application to the court for a determination on the matter.
(6)Where, pursuant to an application to it under subsection
(5), the court determines that one or more of the criteria in paragraphs (a) to (e) of subsection
(2)does not apply, it may determine that the co-decision-maker shall no longer act as co-decision-maker for the appointer concerned. Reports by co-decision-maker 27.
(1)A co-decision-maker shall, within 12 months after registration of the co-decision-making agreement appointing him or her, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such co-decision-maker during the relevant period.
(2)Every report submitted to the Director pursuant to this section shall be approved by the appointer and shall be in such form as shall be prescribed by regulations made under section 31 and shall include details of all transactions relating to the appointer’s finances which are within the scope of the co-decision-making agreement and details of all costs and expenses paid to and claimed by the co-decision-maker in the relevant period together with such other matters as are prescribed.
(3)Where a co-decision-maker fails to submit a report in accordance with this section or submits an incomplete report, the Director shall notify the appointer and the co-decision-maker concerned of that failure or incompleteness and give the co-decision-maker such period of time as is specified in the notification to comply or submit a complete report.
(4)Where a co-decision-maker fails to comply with a notification under subsection
(3), the Director shall— (
  1. a)in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and regulations made under section 31 , accept the report as if it were in compliance with this section and the relevant regulations, or (
  2. b)make an application to the court for a determination as to whether the co-decision-maker should continue as co-decision-maker for the appointer.
(5)Pursuant to an application to it under subsection
(4)(b), the court may determine that a co-decision-maker who has not complied with this section shall no longer act as co-decision-maker for the appointer concerned.
(6)In this section “relevant period” means the period of time to which the report relates which shall be the period of time between the date of registration of the co-decision-making agreement or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned. Variation of co-decision-making agreement 28.
(1)The terms of a registered co-decision-making agreement may be varied by agreement between the appointer and the co-decision-maker.
(2)Subject to section 17
(6), a varied co-decision-making agreement shall include the signature of the appointer and the co-decision-maker (in this section referred to as “the applicants”) and shall be witnessed in accordance with section 17
(7).
(3)An application to register a varied co-decision-making agreement shall be made in such form and accompanied by such fee as shall be prescribed by regulations made under section 31 and, subject to section 17
(6), shall be signed by both the appointer and the co-decision-maker.
(4)The applicants shall, at the same time as making an application to register a varied co-decision-making agreement, give notice, in such form as shall be prescribed by regulations made under section 31 , to the persons specified in section 21
(3)and the application shall be accompanied by the following: (
  1. a)the varied co-decision-making agreement; (
  2. b)a statement by the applicants outlining the variation and why it is considered necessary; (
  3. c)a statement by a registered medical practitioner and a statement by such other healthcare professional as shall be prescribed by regulations made under section 31 that in his or her opinion— (
  4. i)the appointer has capacity to vary the co-decision-making agreement, (
  5. ii)the appointer requires assistance in exercising his or her decision-making in respect of the relevant decisions contained in the varied co-decision-making agreement, and (iii) the appointer has capacity to make the decision or decisions specified in the varied co-decision-making agreement with the assistance of the co-decision-maker concerned; (
  6. d)details of the notice given pursuant to this subsection; (
  7. e)any change to the information provided pursuant to section 21
(4)(
  1. e)in the application to register the co-decision-making agreement; (
  2. f)the appropriate fee, as prescribed by regulations made under section 31.
(5)Sections 22 to 27 and sections 29 to 34 shall apply to a varied co-decision-making agreement as they apply to a co-decision-making agreement with the modification that a reference to “co-decision-making agreement” in those sections shall be read as if “varied co-decision-making agreement” were substituted for “co-decision-making agreement” and any other necessary modifications.
(6)An application to register a varied co-decision-making agreement may not be made less than 6 months from the date of registration of the co-decision-making agreement which it varies, and thereafter at intervals of not less than 12 months, unless a shorter period is agreed by the Director.
(7)Upon registration of a varied co-decision-making agreement, the Director shall remove from the Register the co-decision-making agreement which the varied co- decision-making agreement replaces.
(8)A varied co-decision-making agreement shall not enter into force until it has been registered. Revocation of co-decision-making agreement and removal from Register 29.
(1)A co-decision-making agreement, whether registered or not, may be revoked in whole or in part at any time by the appointer or the co-decision-maker, or both.
(2)A revocation or revocation in part of a co-decision-making agreement shall be in writing and shall be in such form as shall be prescribed by regulations made under section 31 .
(3)Subject to section 17
(6), a revocation or a revocation in part of a co-decision-making agreement shall be signed by the person or persons making the revocation and, in the case of a revocation by the appointer, his or her signature shall be acknowledged by 2 witnesses and section 17
(7)shall apply with the necessary modifications.
(4)Where a revocation or revocation in part is made after the co-decision-making agreement concerned has been registered, the person making the revocation shall notify the Director of the revocation or revocation in part, as the case may be.
(5)Upon receipt of a notification under subsection
(4)the Director shall— (
  1. a)where the revocation concerns the whole of the co-decision-making agreement concerned, remove the co-decision-making agreement to which the revocation relates from the Register, and (
  2. b)where the revocation is a revocation in part, identify on the Register the extent of the revocation, and in either case notify the persons specified in section 21
(3)of the fact of the revocation or revocation in part, as the case may be.
(6)In this section a “revocation in part” means a revocation (whether by the co-decision-maker or the appointer or both), whereby the co-decision-maker continues to act as co-decision-maker for the appointer in respect of one or more relevant decisions which are the subject of the co-decision-making agreement. Complaints in relation to co-decision-makers 30.
(1)A person may make a complaint in writing to the Director concerning one or more of the following matters: (
  1. a)that the co-decision-maker has acted, is acting, or is proposing to act outside the scope of his or her functions under the co-decision-making agreement; (
  2. b)the suitability of a co-decision-maker in relation to an appointer; (
  3. c)a co-decision-making agreement not being in accordance with the will and preferences of an appointer; (
  4. d)that an appointer did not, at the time of entry into the co-decision-making agreement, have capacity to make a decision to enter into the agreement; (
  5. e)that fraud, coercion or undue pressure was used to induce an appointer to enter into the co-decision-making agreement; (
  6. f)that an appointer has capacity in respect of one or more of the decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker; (
  7. g)that an appointer no longer has capacity in respect of one or more than one of the decisions which are the subject of the co-decision-making agreement even with the assistance of the co-decision-maker.
(2)Following the receipt of a complaint under subsection
(1), the Director shall carry out an investigation of the matter which is the subject of that complaint and— (
  1. a)where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to any matter specified in the complaint, or (
  2. b)where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.
(3)A person who receives a notification under subsection
(2)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
(4)The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to the court for a determination in relation to any matter specified in subsection
(1).
(5)The court may— (a) pursuant to an application to it under subsection
(2)(a) or
(4), or (b) pursuant to an appeal under subsection
(3), make a determination in relation to a matter specified in subsection
(1)and may, if it considers it appropriate, determine that a co-decision-maker shall no longer act as such in relation to the appointer concerned. Regulations 31. The Minister, having regard to the requirements of this Part, shall prescribe by regulations the following matters: (a) the form of a co-decision-making agreement; (b) the form of an application under sections 21
(2)and 28
(3)to register a co-decision-making agreement and varied co-decision-making agreement; (c) the form of notice under sections 21
(3)and 28
(4)of an application to register a co-decision-making agreement and varied co-decision-making agreement; (
  1. d)the form of an objection under section 24 to the registration of a co-decision-making agreement and varied co-decision-making agreement; (
  2. e)the form of a report under section 27 to be submitted by a co-decision-maker to the Director; (
  3. f)the form of revocation under section 29 of a co-decision-making agreement; (
  4. g)the form of references under section 21
(4)(
  1. g)as to the personal character of a co-decision-maker; (
  2. h)the bodies or classes of persons under section 25
(3)who may inspect the Register and receive an authenticated copy of a co-decision-making agreement; (
  1. i)the fees to be paid in connection with— (
  2. i)an application to register a co-decision-making agreement or varied co-decision-making agreement, (
  3. ii)an objection to an application to register a co-decision-making agreement or varied co-decision-making agreement, and (iii) the issue of an authenticated copy of a co-decision-making agreement; (
  4. j)the class of healthcare professionals under section 21
(4)(f). Applications to Court 32. Where, under this Part, the court is determining whether a co-decision-maker should continue to act as co-decision-maker for an appointer, it shall have regard to all of the circumstances of the case, including in particular— (
  1. a)the capacity of the appointer, (
  2. b)the appointer’s willingness to continue to participate in the co-decision-making agreement concerned, (
  3. c)the suitability of the co-decision-maker, (
  4. d)the performance by the co-decision-maker of his or her functions, and (
  5. e)the views of the Director. Role of Director where nullity occurs 33. On receipt of notification of nullity pursuant to section 20
(8), the Director shall— (
  1. a)remove the co-decision-making agreement from the Register, or note on the Register the extent of the nullity, as the case may be, and (
  2. b)notify the persons referred to in section 21
(3)of the nullity and any removal of the agreement from the Register. Offences in relation to co-decision-making agreements 34.
(1)A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a co-decision-making agreement commits an offence and shall be liable— (
  1. a)on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (
  2. b)on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
(2)A person who, in an application for registration of a co-decision-making agreement, or in connection with such an application, makes a statement which he or she knows to be false in a material particular commits an offence and shall be liable— (
  1. a)on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or (
  2. b)on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for a term not exceeding 2 years, or both.
(3)The reference in subsection
(1)to 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 co-decision-making agreement. PART 5 Applications to Court in respect of Relevant Persons and Related Matters Chapter 1 Application of this Part Application of this Part 35. This Part shall not apply to relevant persons who have not attained the age of 18 years. Chapter 2 Applications under this Part Persons who may make applications to court under this Part, etc. 36.
(1)Subject to subsections
(2)and
(3), a relevant person, or any person who has attained the age of 18 years and who has a bona fide interest in the welfare of a relevant person, may make an application to the court under this Part.
(2)An application to the court under this Part (other than an application by the relevant person) shall be made on notice to— (
  1. a)the relevant person the subject of the application, and (
  2. b)the persons referred to in paragraphs (
  3. c)to (
  4. i)of subsection
(4)(other than any such person who is the applicant).
(3)Subject to subsection
(4), an application to the court under this Part shall not be made unless the person making the application has received the consent of the court to the making of the application, which consent may be sought by way of an ex parte application.
(4)Subject to section 49
(1), subsection
(3)shall not apply to an application to the court under this Part made by— (
  1. a)the relevant person, (
  2. b)the Director, (
  3. c)the spouse or civil partner of the relevant person, (
  4. d)a decision-making assistant for the relevant person, (
  5. e)a co-decision-maker for the relevant person, (
  6. f)a decision-making representative for the relevant person, (
  7. g)an attorney for the relevant person, (
  8. h)a designated healthcare representative for the relevant person, (
  9. i)a person specified for that purpose in an existing order of the court under this Part where the application relates to that order, (
  10. j)if the application relates, whether in whole or in part, to the relevant person’s capacity to make a decision to consent to being married or to being in a civil partnership— (
  11. i)a registrar within the meaning of section 17 of the Civil Registration Act 2004 , or (
  12. ii)the other party to the proposed marriage or civil partnership (if any), as the case may be, of the relevant person.
(5)An application to the court under this Part (including an ex parte application under subsection
(3)) shall state— (
  1. a)the applicant’s connection with the relevant person, (
  2. b)the benefit to the relevant person sought to be achieved by the application, and (
  3. c)the reasons why the application is being made, in particular— (
  4. i)the reason why the benefit to the relevant person sought to be achieved has failed to be achieved in any other appropriate, practicable and less intrusive manner taken prior to the making of the application, and (
  5. ii)the reason why, in the opinion of the applicant, no other appropriate, practicable and less intrusive manner to achieve that benefit remains to be taken prior to the making of the application.
(6)In every application to the court under this Part, the applicant shall inform the court of the existence of— (
  1. a)any decision-making assistance agreement, co-decision-making agreement, enduring power of attorney or enduring power under the Act of 1996 or advance healthcare directive created by the relevant person, and (
  2. b)any decision-making representation order or decision-making order made in respect of the relevant person, of which the applicant has knowledge.
(7)Rules of court shall make provision— (
  1. a)as to the manner and form in which proceedings under this Part are to be commenced, and (
  2. b)as to what may be received as evidence in such proceedings and the manner in which it is to be presented.
(8)The court, on the hearing of an application under this Part, may allow the relevant person the subject of the application, if he or she has not instructed a legal practitioner, to be assisted in court by a court friend for the relevant person unless— (
  1. a)there is a decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person and the decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative, as the case may be, is willing to assist the relevant person during the course of the hearing, or (
  2. b)subject to sections 100
(12)and 103
(15), there is another person, in respect of whom the court is satisfied that such person is suitable, willing and able to assist the relevant person during the course of the hearing.
(9)Where, on the hearing of an application under this Part— (
  1. a)the relevant person the subject of the application has not instructed a legal practitioner, (
  2. b)there is— (
  3. i)no decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person or, if there is a decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person, he or she is not willing to assist the relevant person in the course of the hearing, and (
  4. ii)no person who falls within paragraph (
  5. b)of subsection
(8)in respect of the relevant person and the hearing, and (c) there is no court friend for the relevant person, the court may direct the Director to appoint a court friend for the relevant person.
(10)Hearings of applications under this Part shall— (
  1. a)be conducted with the least amount of formality consistent with the proper administration of justice, and (
  2. b)be heard and determined otherwise than in public.
(11)Judges hearing and determining proceedings under this Part and legal practitioners appearing in such proceedings shall not wear wigs or gowns. Chapter 3 Declarations as to capacity, etc., and matters following declarations Power of court to make declarations as to capacity, etc. 37.
(1)The court, on application to it by a person entitled by virtue of section 36 to make the application, may make one or both of the following declarations: (
  1. a)a declaration that the relevant person the subject of the application lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to him or her, to make one or more than one decision specified in the declaration relating to his or her personal welfare or property and affairs, or both; (
  2. b)a declaration that the relevant person the subject of the application lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her, to make one or more than one decision specified in the declaration relating to his or her personal welfare or property and affairs, or both.
(2)Where the court makes a declaration pursuant to subsection
(1)(a), it shall, unless it is clear to the court at that time that the relevant person does not intend to enter into a co-decision-making agreement, allow the relevant person such period of time as the court considers necessary (and taking account of the time periods set out in Part 4 ) to register a co-decision-making agreement.
(3)Subject to subsection
(4), the court, on application to it by a person entitled by virtue of section 36 to make the application, may make a declaration as to the lawfulness of an intervention proposed to be made in respect of the relevant person the subject of the application.
(4)Subsection
(3)shall not apply to an intervention where— (
  1. a)the intervener is the court or High Court, or (
  2. b)the intervention is being taken pursuant to an order made, or a direction given, under this Act by the court or High Court. Chapter 4 Decisions by court or decision-making representative appointed by court Power of court to make orders and appoint decision-making representative, etc. 38.
(1)This section applies where— (
  1. a)the court has made a declaration which falls within paragraph (
  2. a)of section 37
(1), but— (
  1. i)there is no suitable person to act as co-decision-maker for the relevant person, or (
  2. ii)where there is a suitable person to act as co-decision-maker for the relevant person, a co-decision-making agreement in respect of the relevant person is not registered in accordance with Part 4 within the period (which may be extended at the court’s discretion) set down by the court, or (
  3. b)the court has made a declaration in respect of a relevant person which falls within paragraph (
  4. b)of section 37
(1).
(2)Where this section applies, the court may make one or both of the following orders: (
  1. a)an order making the decision or decisions concerned on behalf of the relevant person where it is satisfied that the matter is urgent or that it is otherwise expedient for it to do so; (
  2. b)subject to subsection
(7)and section 36 , an order appointing a suitable person who has attained the age of 18 years to be a decision-making representative for the relevant person for the purposes of making one or more than one decision specified in the order on behalf of the relevant person in relation to his or her personal welfare or property and affairs, or both.
(3)In making a decision-making order or decision-making representation order in relation to personal welfare, the court shall have regard to the terms of any advance healthcare directive made by the relevant person and shall— (
  1. a)ensure that the terms of the order are not inconsistent with the directive, and (
  2. b)where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with the directive or the relevant powers exercisable by any designated healthcare representative under the directive.
(4)In making a decision-making order or decision-making representation order, the court shall have regard to the terms of any enduring power of attorney made by the relevant person or enduring power under the Act of 1996 made by him or her and shall— (
  1. a)ensure that the terms of the order are not inconsistent with the terms of the enduring power of attorney or enduring power under the Act of 1996, and (
  2. b)where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with— (
  3. i)the functions of an attorney under an enduring power of attorney, or (
  4. ii)the duties and obligations of an attorney under the Act of 1996.
(5)When considering the suitability of a person to be a decision-making representative for a relevant person, the court shall have regard to the following: (
  1. a)the known will and preferences of the relevant person; (
  2. b)the desirability of preserving existing relationships within the family of the relevant person; (
  3. c)the relationship (if any) between the relevant person and the proposed representative; (
  4. d)the compatibility of the proposed representative and the relevant person; (
  5. e)whether the proposed representative will be able to perform the functions to be vested in him or her; (
  6. f)any conflict of interest.
(6)Where the court appoints a decision-making representative to make decisions on the relevant person’s property and affairs, it shall have regard to the following: (
  1. a)the size, nature and complexity of the relevant person’s financial affairs; (
  2. b)any professional expertise, qualification or experience required to manage the relevant person’s financial affairs; (
  3. c)the capability of the proposed representative to manage the relevant person’s property and affairs; (
  4. d)the financial expertise and support available to the proposed representative.
(7)Where the court proposes to appoint a decision-making representative for a relevant person but no suitable person is willing to act as such decision-making representative— (
  1. a)the court shall request the Director to nominate 2 or more persons from the panel established under section 101 for consideration by the court for such appointment, (
  2. b)the Director shall comply with a request by the court under paragraph (a), and (
  3. c)the court may, under subsection
(2)(b), appoint, from amongst those nominees, a person to be a decision-making representative for the relevant person for the purposes referred to in that paragraph.
(8)In making a decision-making order or decision-making representation order, the court shall make provision for such other matters as it considers appropriate, including— (a) subject to subsection
(9), the conferral of powers on a decision-making representative, (
  1. b)the imposition of duties on a decision-making representative, (
  2. c)the attachment of conditions relating to the making of any relevant decision by a decision-making representative or the exercise of any power by a decision-making representative in his or her capacity as a decision-making representative, and (
  3. d)the period of time for which the order is to have effect.
(9)In making a decision-making representation order, the court shall, in so far as the order relates to the conferral of powers referred to in subsection
(8)(a), ensure that the powers conferred are as limited in scope and duration as is necessary in the circumstances having regard to the interests of the relevant person the subject of the order.
(10)The court may appoint one or more than one person as a decision-making representative for a relevant person and may so appoint different persons in respect of different relevant decisions.
(11)In making a decision-making representation order, the court shall require the decision-making representative, or decision-making representatives if there is more than one, to sign a statement indicating that he or she— (
  1. a)understands and undertakes to act in accordance with the powers conferred and the duties imposed on him or her by the court, and (
  2. b)understands and undertakes to act in accordance with the guiding principles set out in section 8 .
(12)A decision-making representation order appointing more than one person as a decision-making representative for a relevant person in relation to the same relevant decisions shall make provision as to whether such persons are to act— (a) jointly, (b) jointly and severally, or (c) jointly as respects some relevant decisions and jointly and severally as respects other relevant decisions.
(13)The court may make a decision-making order or decision-making representation order notwithstanding that an application has not been made to it under this Part for an order in that respect or in those terms.
(14)The court may vary or discharge a decision-making order or decision-making representation order, whether of its own motion or pursuant to an application to it under this Part by a person entitled by virtue of section 36 to make the application. Persons who are not eligible to be decision-making representatives 39.
(1)Subject to subsection
(2), a person shall not be eligible for appointment as a decision-making representative if he or she— (
  1. a)has been convicted of an offence in relation to the person or property of the relevant person or the person or property of a child of that person, (
  2. b)has been the subject of a safety or barring order in relation to the relevant person or a child of that person, (
  3. c)is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty, (
  4. d)is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (
  5. e)is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act, (
  6. f)is a person who is— (
  7. i)the owner or registered provider of a designated centre or mental health facility in which the relevant person resides, or (
  8. ii)residing with, or an employee or agent 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 relevant person, or (
  9. g)has been convicted of an offence under section 34 , 80 , 90 or 145 .
(2)Subsections
(1)(c), (
  1. d)and (
  2. e)shall not apply as respects the appointment of a person as a decision-making representative in respect of relevant decisions concerning personal welfare matters only. Disqualification as decision-making representative 40.
(1)A decision-making representative shall, with effect from the date on which an event specified in paragraphs (
  1. a)to (
  2. c)occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the spouse of the relevant person and— (
  3. a)the marriage is annulled or dissolved either— (
  4. i)under the law of the State, or (
  5. ii)under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State, (
  6. b)either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect, (
  7. c)a written agreement to separate is entered into between the spouses, or (
  8. d)subject to section 2
(2), the spouses separate and cease to cohabit for a continuous period of 12 months.
(2)A decision-making representative shall, with effect from the date on which an event specified in paragraph (
  1. a)or (
  2. b)occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the civil partner of the relevant person and— (
  3. a)the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either— (
  4. i)under the law of the State, or (
  5. ii)under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State, (
  6. b)a written agreement to separate is entered into between the civil partners, or (
  7. c)subject to section 2
(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.
(3)Subject to section 2
(2), a decision-making representative shall, at the expiry of the period referred to in this subsection, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the cohabitant of the appointer and the cohabitants separate and cease to cohabit for a continuous period of 12 months.
(4)Subject to subsection
(5), where, subsequent to the appointment of a decision-making representative— (
  1. a)the decision-making representative is convicted of an offence in relation to the person or property of the relevant person or the person or property of a child of the relevant person, (
  2. b)a safety or barring order is made against the decision-making representative in relation to the relevant person or a child of the relevant person, (
  3. c)the decision-making representative becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty, (
  4. d)the decision-making representative becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (
  5. e)the decision-making representative becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act, (
  6. f)the decision-making representative becomes— (
  7. i)the owner or registered provider of a designated centre or mental health facility in which the relevant person resides, or (
  8. ii)a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the decision-making representative is a spouse, civil partner, cohabitant, parent, child or sibling of the appointer, (
  9. g)the decision-making representative is convicted of an offence under section 34 , 80 , 90 or 145 , or (
  10. h)the decision-making representative— (
  11. i)enters into a decision-making assistance agreement as a relevant person, (
  12. ii)enters into a co-decision-making agreement as a relevant person, (iii) has an enduring power of attorney or enduring power under the Act of 1996 registered in respect of himself or herself, or (
  13. iv)becomes the subject of a declaration under section 37
(1), the decision-making representative shall be disqualified from being a decision-making representative for the relevant person with effect from the date on which the decision-making representative falls within any of paragraphs (a) to (h).
(5)Subsections
(4)(c), (
  1. d)and (
  2. e)shall not apply to a decision-making representative insofar as he or she exercises functions under the decision-making representation order in relation to the personal welfare of the relevant person.
(6)Where a decision-making representative becomes disqualified under this section, he or she or, in the case of disqualification pursuant to subsection
(4)(h)(iii) or (iv), his or her attorney, decision-making representative or the court, as the case may be, shall notify the Director of such disqualification and the particulars relating thereto.
(7)Where a decision-making representative becomes disqualified, a relevant decision made solely by him or her after his or her disqualification shall be null and void.
(8)Subsection
(7)shall not operate to prevent a person who relied on a relevant decision referred to in that subsection from recovering damages in respect of any loss incurred by him or her as a result of that reliance. Performance of functions of decision-making representative 41.
(1)In exercising his or her functions as specified in the decision-making representation order, a decision-making representative shall, insofar as this is possible, ascertain the will and preferences of the relevant person on a matter the subject of, or to be the subject of, a relevant decision and assist the relevant person with communicating such will and preferences.
(2)A decision-making representative shall make a relevant decision on behalf of the relevant person and shall act as the agent of the relevant person in relation to a relevant decision. Remuneration and expenses 42.
(1)Except where the court otherwise orders, a decision-making representative for a relevant person shall be entitled to be reimbursed out of the assets of the relevant person in respect of his or her fair and reasonable expenses which are reasonably incurred in performing his or her functions as such decision-making representative.
(2)Where the court so directs in a decision-making representation order, the decision-making representative shall be entitled to reasonable remuneration in relation to the performance of his or her functions as such decision-making representative and which functions are carried out in connection with his or her trade or profession, or in other exceptional circumstances specified in the order, and such remuneration shall be paid from the assets of the relevant person. Scope of decision-making order or decision-making representation order relating to property and affairs 43.
(1)A decision-making representative may not dispose of the property of the relevant person by way of gift unless specific provision to that effect is made by the court in the decision-making representation order.
(2)Subject to section 44 , if a decision-making representative for a relevant person is empowered by the decision-making representation order appointing him or her as such decision-making representative to dispose of the relevant person’s property by way of gift, then, without the specific approval of the court, the power to make such a gift shall be limited to— (
  1. a)gifts made on customary occasions to persons (including the decision-making representative) who are related or connected to the relevant person and in relation to whom the relevant person might be expected to make gifts, and (
  2. b)gifts to any charity to which the relevant person made or might reasonably be expected to make gifts, provided that the value of the gift is reasonable having regard to all the circumstances and in particular the extent of the relevant person’s assets and financial obligations.
(3)(
  1. a)Subject to paragraph (b), the court may, notwithstanding that there is a decision-making representative for a relevant person, confer on the Director the custody, control and management of some or all of the property of the relevant person if the court considers that the Director is the most appropriate person to exercise that power in respect of that property. (
  2. b)An order under paragraph (a)— (
  3. i)shall not be made unless there is no person who is suitable and willing to act as decision-making representative in relation to the property and affairs of the relevant person, and (
  4. ii)may require some or all of the property of the relevant person which is money to be lodged into court.
(4)Where the court proposes to make an order under subsection
(3)(a) in respect of the property of a relevant person, the Director shall consult with and have regard to the views of one or more than one of the members of the family of the relevant person and such other persons as the court may direct be consulted in relation to such matters as respects the management of the property to which the order may relate.
(5)Where the court makes an order under subsection
(3)(a) in respect of the property of a relevant person, it may make the order subject to such conditions as it considers appropriate.
(6)A decision-making representation order may provide for the giving of such security by the decision-making representative to the court as the court considers appropriate in relation to the proper performance of the functions of such decision-making representative. Restrictions on decision-making representatives 44.
(1)Nothing in this Part shall permit a decision-making representative for a relevant person to be given the power to prohibit a particular person from having contact with the relevant person.
(2)A decision-making representative for a relevant person shall not have authority to make decisions on behalf of a relevant person other than those specified in the decision-making representation order.
(3)A decision-making representative for a relevant person shall not, without the express approval of the court— (a) exercise any powers in relation to the settlement of any part of the pro

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.