Decision Supporters (Interveners)

Assistance to gather information & express will and preference

The person has one or more decisions to make and in order to do that require access to and an understanding of certain information in order to consider all of the options. The person’s ability to make the decision is in question, or will shortly be in question. The person can appoint a Decision-Making Assistant under an agreement. 

Decision-Making Assistant

• to assist in obtaining/explaining information in relation to a particular matter/decision
• ascertain the will and preferences of the person on the matter
• assist the person to make, express and implement the decision

Decision-Making Assistant Agreement

• Regulations will be developed on the form and content of the Agreement.
• The Agreement appoints one or more person (over 18) to assist the appointer to make decisions about certain specified matters (personal welfare or property or affairs)

Assistance, advice and help to jointly make the decision

The person has one or more decisions to make and is unable, or will shortly be unable, even with access to information and options to properly use that information and consider the options without assistance and advice. The person can appoint a Co-Decision-Maker under a registered agreement to work through information and options, and to make the decision together. 

Role of Co-Decision-Maker

• To advise the person by obtaining and explaining relevant information
• Find out the person’s will and preferences in relation to the matter and assist with communicating that
• Discuss the options and the likely outcomes of the decision with the person 
• Make the decision jointly with the person
• Make efforts to ensure the decision is implemented
• Submit a Report on performance as a co-decision-maker detailing all transactions relating to the person’s finances, and costs and expenses paid to and claimed by the co-decision-maker

Co-Decision-Making Agreement

• Agreement in writing – signed by the person (over 18) creating it in the presence of 2 witnesses 
• The Agreement appoints one or more named persons with whom the appointer will make joint decisions about certain specified matters (personal welfare or property or affairs)
• Both must agree on each decision which is to be in accordance with the wishes of the appointer, unless that decision will result in serious harm to the appointer or someone else.
• It is not effective until registered, there are requirements for registration including a statement from medical practitioner
• Notice must be served on certain people at the time of registration including spouse, co-habitant, children over 18, other decision supporters
• Objections to registration can be made on the basis that:
  • it is not valid
  • Appointer lacked capacity to sign it
  • Appointer has capacity to make the decision
  • Co-decision-maker is unsuitable
  • Fraud or coercion was used to get the appointer to sign

Making a healthcare decision on a person’s behalf who has planned ahead

The person is considered to lack capacity to make particular healthcare decisions. The person had planned ahead and at a different time in their life had created an Advance Healthcare Directive (AHD) setting out what healthcare treatments they do not want or would like to request if they are unable to make healthcare decisions. The person has appointed a Designated Healthcare Representative in their AHD who can act for so long as the person lacks capacity. 

Designated Healthcare Representative

• Acts as agent for the person (directive maker) when exercising powers given them in the (AHD)
• Advise and interpret the person’s will and preferences regarding treatment
• Consent to or refuse treatment based on the known will and preferences of the person 
• Make and keep a record in writing of decisions made on behalf of the person
• Must be over 18
• The Representative signs the AHD at the time it is created

Advance Healthcare Directive

• A written document – signed in the presence of two witnesses (at least one of whom is not an immediate family member)
• Made by a person aged 18 or over in advance and while he/she has the ability to do so
• Sets out the person’s will and preferences concerning medical or healthcare treatment decisions which may arise in the future at a time when he/she may not have the ability to make those decisions for him/herself
• Can include the appointment of a Designated Healthcare Representative to make healthcare decisions for the person when unable to do so, and to interpret the provisions of the AHD
• Allows a person control over future healthcare treatment even at a time when the person does not have capacity to make choices
• Enables a person to be treated according to their will and preferences, beliefs and values, expressed in advance
• Provides healthcare professionals with important information about patients and their choices in relation to treatment
• Allows a person to make a decision to refuse treatment for any reason, even if that refusal may appear to be unwise or not based on sound medical principles, or even where the treatment refusal may result in death.
• A person can make a treatment request in an AHD. A treatment request is not legally binding, however it should be taken into consideration by healthcare professionals, and they must record their reasons if they do not comply with the request.
• Where there is ambiquity about the validity or applicability of a AHD it is to be interpreted in favour of the preservation of life

Circumstances when AHD is not applicable

• Refusal of life sustaining treatment unless there is a specific statement otherwise in the document along with an acknowledgement that the person understands that this refusal may result in their death
• Refusal of basic care that includes but is not limited to warmth, shelter, oral nutrition and/or hydration and hygiene, (artificial nutrition and hydration come within the definition of medical treatment)
• A person involuntarily detained under the Mental Health Acts for a mental disorder and who has lost capacity, unless the treatment refusal is unrelated to the treatment of the mental disorder

Making a personal welfare, property or affairs decision on person’s behalf who has planned ahead

The person is considered to lack capacity to make a specific decision about their personal welfare, property or affairs.  The person had planned ahead and at a different time in their life had created an Enduring Power of Attorney setting out their wishes to be followed if they are unable to make healthcare decisions. The person has appointed one or more persons to be their Attorney under an Enduring Power of Attorney.

Attorney

• Must be over 18
• Has general authority to act on behalf of the person in relation to all or a specified part of the their property and affairs or
• Has specific authority to act on behalf of the person in relation to their personal welfare or property and affairs
• Act in accordance with the person’s (donor) will and preferences, beliefs and values, expressed in advance to attorney/s
• Keep and submit proper accounts and financial records of person’s income and expenditure
• Prepare and submit annual reports on actions taken on behalf of the person, including actions to restrain the person
• Cannot carry out actions that are intended to restrain the person, unless an imminent risk of serious harm to the person

Enduring Power of Attorney (EPA)

• A document in a prescribed format with a statement by the person (donor) to the effect that power is given to Attorney(s) at a time when the person lacks capacity to manage their personal welfare and/or property and affairs
• One or more than one attorneys may be appointed
• The signature of the person must be witnessed by two people
• A legal practitioner must certify that the person understood the effect of making the EPA and has no reason to believe that the document is being executed as a result of fraud or undue pressure
• A medical practitioner and another healthcare professional, must state that in his/her opinion the person had capacity to understand the effect of creating the EPA
• Notice must be given to specific people at the time of signing of the EPA 
• It is only effective when the person lacks capacity and it has been registered
• Requirements for registration: Medical and healthcare professional’s opinions required regarding person’s lack of capacity
• Cannot carry out actions that are intended to restrain the person, unless an imminent risk of serious harm to the person
• Objections to registration are possible from notice parties or a person with an interest in the welfare of the person

Quick reference guide: Differences between an EPA created under Powers of Attorney Act 1996 & an EPA under ADM (Capacity) Act 2015

Making a decision on person’s behalf who has not planned ahead

Where a person is considered to lack capacity to make the specific decision, and the person has not planned ahead for this type of decision an application is made to the Circuit Court to appoint a Decision-Making Representative to make the decision on behalf of the person in accordance with the Guiding Principles. 

• Appointed by order of the Circuit Court for the purposes of making one or more specified decisions in relation to a person’s personal welfare (including healthcare) or their property and affairs.
• Alternatively appointed generally to make all decisions on behalf of a person

Role of Decision-Making Representative (DMR)

• Make all possible efforts to ascertain the will and preference of the person, and assist the person to communicate their will and preference.
• Make decisions on behalf of the person
• Act as an agent for the person in relation to the decision 
• Keep proper accounts and financial records of the person’s affairs and the other actions performed
• File an annual Report about what and how the duties of the appointment were performed
• Cannot refuse life sustaining treatment on behalf of the person
• Cannot carry out actions that are intended to restrain the person, unless an imminent risk of serious harm to the person 

Factors to determine suitability of a Decision-Making Representative (DMR)

• The known will and preference of the person for whom the appointment is being made
• Desirability of preserving existing family/other relationships
• The relationship between the person and the proposed DMR
• Compatibility between the person and the DMR
• The Decision-Making Representative’s ability to perform their functions
• Conflict of interests
• Any professional/financial expertise needed to manage the person’s affairs
• If no suitable person is available the Court can choose a DMR from a panel
• The Court can limit the time of an appointment of a DMR, and place conditions on the role