Assisted Decision-Making - Progress, Pitfalls, and the Path Ahead

The commencement of the Assisted Decision-Making (Capacity) Act on 26 April 2023 represented a long-awaited overhaul of Ireland’s capacity laws, replacing the outdated wardship system with a tiered structure of decision supports, aiming to enhance autonomy for adults who require assistance in decision-making. Wardship remains for minors.

The system in practice

The Act created a new regime for adults who, based on a functional capacity test lacked capacity and required assistance with their decision-making.

Under the Act, individuals requiring decision support can avail of a three-tiered structure depending on their level of capacity:

• Decision-Making Assistance
• Co-Decision-Maker
• Decision-Making Representative (DMR)

Additionally, two further mechanisms—Advance Healthcare Directives and Enduring Powers of Attorney (EPA)—allow individuals to set out their preferences in anticipation of future incapacity.

New applications

The Circuit Court was conferred with Jurisdiction under the Act to make orders appointing DMRs and co-decision makers. By February 2025 960 DMRs were appointed to the Circuit Court, and nearly 1500 applications were made.

Persistent challenges

While the reform has been widely welcomed, the introduction of this new system in the Circuit Court has meant that judges, court staff, and legal practitioners have had to adapt to new processes, documentation, and evolving judicial guidance.

The abolition of wardship has left a gap in the system for some vulnerable individuals who do not fit into the new framework. Healthcare professionals have had to resort to the High Court’s inherent jurisdiction to intervene to protect some of the most vulnerable in our society — a process that is neither straightforward nor sustainable as a long-term solution.

Courts inherent jurisdiction

New applications for treatment, detention and care of vulnerable people who lack capacity must be dealt with under the courts inherent jurisdiction. Orders may be sought in a variety of situations including persons:

• With anorexia
• On life-support
• Requiring urgent surgical intervention

Discharge from adults in wardship

Review and discharge applications can be made by:

• The ward
• The wards committee, and
• Another with leave of the court

The Rules of the Superior Courts provide that the High Court must carry out a review and to discharge every adult from Wardship by 26 April 2026. There is currently no provision in the Act for:

• Extension of the April 2026 deadline
• The consequences if the court cannot review and discharge all wards by April 2026
• The position of wards who have not been reviewed or discharged by the deadline

These uncertainties represent a significant gap in the Act.

Meeting the discharge deadline

To date, only 112 people have been discharged from wardship under the 2015 Act. 1,831 adults remain in wardship.

The Wards of Court Office has highlighted several reasons why there have been so few discharge applications, which include:

• Hesitancy to change to an unfamiliar arrangement
• Uncertainty surrounding the proposed new management of wards' funds
• Costs of the discharge process
• Intricacies of the discharge process
• Content with the Wards of Court service already provided

Enduring powers of attorney: practical issues

Enduring Powers of Attorney remains one of the most debated aspects of the Act. Practical issues around their creation, execution, and notification requirements have raised concerns among legal practitioners and affected individuals.

In particular, the statutory requirement to notify spouses and adult children of the creation of an EPA, regardless of family dynamics, continues to be contentious. There is a real risk that these complexities may deter individuals from putting an EPA in place, potentially leading to increased court applications down the line.

Looking ahead

As Ireland’s assisted decision-making framework matures, further refinements and interpretations are inevitable.

Legal practitioners, healthcare providers, and individuals navigating the system will need to stay attuned to judicial developments, potential legislative amendments, procedural fairness, substantive effectiveness and evolving best practices.

If you require advice about any aspect of the Act, from compliance and training to urgent court applications, please contact a member of our Health & Prosecutions team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.