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.
Chair of the Law Society’s Mental Health Law and Capacity Task Force, Áine Hynes SC, said, “The proposed commencement of the Assisted Decision-Making (Capacity) Act 2015 in June 2022 marks a new era for legal capacity. Legislation which supports persons in their decision-making is very much welcomed. However, the proposed implementation plan for the 2015 Act means that the Office of Wards of Court must stop taking applications for new applications in wardship (known as section 15 applications) on the 22 April 2022. This raises serious concerns with regard to how persons who lack capacity can access justice until the 2015 Act is commenced.
“The Law Society strongly recommends 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.
“A phased implementation would allow for the Office of Wards of Court to continue to progress and finish all applications for persons who lack capacity received in advance of commencement of the 2015 Act. 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.
“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.
“Whilst urgent cases will continue to be accepted by the Office of Wards of Court, for example, where there are urgent treatment orders required, section 15 applications are typically those which enable family members to access the funds of a loved one who has lost capacity for their benefit”
Judicial and circuit court resources
“Further, the Circuit Court must have the appropriate resources in order to deal with the influx of applications upon commencement of the Act. It is our understanding that no additional circuit court judicial resources are being made available as part of this process. This will place a considerable burden on the courts and staff who will need to become familiar with the processing of capacity applications.
“The Law Society has written to the relevant Ministers to seek urgent meetings to discuss these recommendations and we look forward to continued engagement with Ministers to address these issues,” Ms Hynes said.
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