The Law Society of Ireland has warned that the proposed implementation plan for the Assisted Decision-Making (Capacity) Act 2015 may deny access to justice for the most vulnerable in society.
The Society is seeking urgent meetings with the relevant ministers to discuss recommendations aimed at addressing its concerns.
The act seeks to change the existing law on capacity from the status approach of the wardship system to a flexible, functional approach, whereby capacity is assessed on an issue and time-specific basis.
Orderly transfer
Áine Hynes SC (Chair of the Law Society’s Mental Health Law and Capacity Task Force, small picture) welcomed the legislation, which comes into effect in June, saying that it marked “a new era” for legal capacity.
She pointed out, however, that the proposed implementation plan for the act meant that the Office of Wards of Court must stop taking applications for new applications in wardship (known as section 15 applications) on 22 April 2022.
“This raises serious concerns with regard to how persons who lack capacity can access justice until the 2015 act is commenced,” Hynes said.
The Law Society is “strongly” recommending that appropriate transitional provisions be put in place, to ensure an orderly transfer from the current wardship system to new systems under the 2015 act.
“Due to the processing time involved, it is unlikely that new capacity applications will be heard before the Circuit Court until at least October 2022. This will leave a gap during which the affairs of a person who may lack capacity cannot be dealt with for their benefit,” Áine Hynes said.
Transitional period
The Society is calling for a phased implementation that would allow the Office of Wards of Court to continue to progress and finish all applications received before the 2015 act starts.
While urgent cases will continue to be accepted by the Office of Wards of Court, the Society points out that section 15 applications typically enable family members to access the funds of a loved one who has lost capacity.
“A transitional period would also help avoid an unnecessary situation whereby the assets of a person who lacks capacity – including property or funds – cannot be accessed by families to provide care for their loved ones,” the chair of the task force stated.
“Aspects of the proposed implementation plan may bring about unintended consequences that cause undue hardship for families and carers, and deny access to justice for the most vulnerable in society. Every effort must be made to avoid this situation,” she added.
Circuit Court resources
The Law Society has also expressed concern about whether the Circuit Court has enough resources to deal with an influx of applications after the 2015 legislation begins operating.
“It is our understanding that no additional Circuit Court judicial resources are being made available as part of this process,” Áine Hynes said, who added that this would place a considerable burden on the courts and staff who would need to become familiar with the processing of capacity applications.