11 Aug 2022

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A question of capacity assisted decision-making | All you need to know from Lynch Solicitors

A question of capacity assisted decision-making | All you need to know from Lynch Solicitors

There are many important decisions to be made when planning for the future. One of those may include a situation where your health has deteriorated, and you no longer have the capacity to voice your preferred treatment options.

What is the Assisted Decision-Marking (Capacity)  Act 2015?
In a sense, the Assisted Decision-Making (Capacity) Act 2015 provides multiple mechanisms for 'future-proofing. It allows you to outline your preferred treatments through an Advance Health Care Directive. It offers guidance on your preferred treatment should your health deteriorate and you can no longer express your wishes. While in 1996, the Enduring Power of Attorney effectively allowed for power to be given to someone else to look after your affairs when you are no longer able to do so, the 2015 act has added several additional legal documents to appoint people to help you manage your affairs, if and when necessary. 

The focus is now on the individual and their situation. 

The Act provides for any person over the age of 18 to make an Advance Healthcare Directive. This directive outlines the wishes of the person whose capacity is compromised in a situation where they require medical treatment. Not only does this afford a person control of their health even when they cannot express their intentions. It also removes a considerable weight from loved ones who often face difficult choices during a sensitive time.

What is the difference between a directive under this Act and Will? 
The main difference between a directive and a Will in this sense is that a Will outlines the wishes of the deceased. In contrast, a Directive caters for your decisions when you are still living but no longer have the ability to express your desired treatment should your health decline.

Who is in control of my directive, and can I amend it? 
Caution should be exercised when selecting a person to hold power over this directive. A lengthy discussion is necessary so that they understand their role and your intentions fully. They not only exercise the decision, but they must also record it. Supervision is undertaken by the Director of Decision Support Service, an office established under the 2015 act, which has provided a move away from the courts. Any decision outlined is revocable and can be changed should you wish.

An advance healthcare directive ensures a person's requests are catered for when they cannot communicate. Alternatively, an advanced healthcare directive can mitigate confusion when someone cannot understand the available options. In an age of choice, this allows people to ensure they can control their healthcare where their decision-making ability is compromised.

Other Decision-Making Mechanisms?

A decision-making assistant
A co-decision maker
A decision-making representative
A designated healthcare representative
An attorney under an Enduring Power of Attorney
A designated healthcare representative under an Advance Health Care Directive


Until recently, the only option for a person who loses their mental capacity was to be made a Ward of Court.

This is a process where a court decides that a person cannot manage their affairs through a lack of mental capacity.

The person's assets and money are brought under the control of the Court.

The Court will be responsible for overseeing your affairs and making decisions for you.

It is this eventuality that we believe that you should pre-plan.

Assisted Decision-Making options give you much more flexibility and control, and we can guide you through the process with minimum stress and a clear and transparent cost structure.

For further information log on to the Lynch Solicitors website here

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