Legal Capacity and the Vulnerable Adult

The 16th of July 2013 saw the publication and approval of the long awaited Assisted Decision-Making (Capacity) Bill 2013. This new legislation will replace a 140-year-old law which categorises people with intellectual disabilities or mental health problems as “lunatics”. The current law governing mental capacity for vulnerable adults in Ireland is based on the Regulation of Lunacy (Ireland) Act 1871. This provides for a ward-of-court system, under which the High Court makes all key decisions over a person’s life.

The new Assisted Decision-making (Capacity) Bill will replace the outdated system with a statutory framework which will govern decision-making on behalf of people who lack capacity to make important decisions for themselves. The new law when implemented will affect thousands of people with intellectual disabilities and their families, and will also impact on older people in care and those with serious mental health problems.

Most campaigners in the area of human rights, disability rights and rights for the elderly feel that our current laws are outdated and provide insufficient protection to vulnerable adults which results in their rights being infringed. The lack of a modern framework also poses problems for the families, carers and service providers of vulnerable adults who are currently required to wade through a lot of red tape and bureaucracy in order to care for their loved ones.

In addition to people with disabilities there are three other groups of people who are in need of protection:

  • Older adults with diminished capacity who are in residential care or being cared for at home
  • Adults with intellectual disabilities who are in residential care or are being cared for at home
  • People with mental health difficulties who have episodes of incapacity

At present, the official processes open to families who have a member with limited mental capacity are wardship and enduring power of attorney. Wardship is often complex and expensive and is usually undertaken where there is property involved and/or a conflict between other family members.  Setting up an enduring power of attorney requires that the person has capacity at the time of making it and is therefore more suited to older people or those with a definite diagnosis.

In practice, family members and carers frequently make day to day decisions, including decisions on the spending of money, on behalf of people who do not have capacity. However, there is no legal right to make such decisions for adults nor is there any protection for the person making the decision.  In particular, there is a legal vacuum in respect of routine decision-making on behalf of people over the age of 18 who have intellectual disabilities and lack capacity.

The new bill addresses the following main points:

  • Provision of a statutory presumption of capacity
  • Assessment of capacity as time-specific and issue-specific
  • The provision of all practicable steps to help a person to make a decision before regarding him/her as unable to do so
  • Proposals for a scheme of Personal Guardianship and for the Office of Public Guardian
  • The integration of the enduring power of attorney and guardianship into one legal framework
  • Legal protection for people engaging in bona fides informal decision-making in connect with the personal care and health care of a person whose decision-making capacity is impaired
  • The key guiding principles of the new law should:

– Provide all adults, including those who may be vulnerable, with the maximum degree of autonomy consistent with appropriate standards of protection
– Ensure that the best interests of the person with impaired capacity must always be the main factor in any decision.

The presumption of capacity is an essential component of any rights-based legislative provisions. This means that everyone has legal capacity but some people need more support than others in order to exercise their legal capacity. Capacity should be assessed in a way which is fair and appropriate and which is free from prejudices based on external factors such as old age, mental illness or intellectual disability. It is important, therefore, that the legislation provides for that support and concentrates on supported decision making wherever possible as well as introducing fair and accountable mechanisms for substitute decision making.