Dáil Éireann Debate, Tuesday - 10 February 2026
919. Deputy Aisling Dempsey asked the Minister for Children, Disability and Equality if she intends to amend the Assisted Decision Making (Capacity) Act 2015 to allow families remain as decision makers for children who mature physically and in age, but not in mental capacity, without the need to apply to the courts; and if she will make a statement on the matter. [9276/26]
Amharc ar fhreagraI thank the Deputy for their question regarding the Assisted Decision-Making (Capacity) Act 2015 and the process of applying to Court for a decision-making arrangement when an adult has reached 18 years of age. An application to court is a key process under Parts 5 and 6 of the Assisted Decision-Making (Capacity) Act (2015 Act).
Under Part 5, Decision-making representation orders (DMROs) are the highest tier of decision support arrangement available and are therefore subject to the strongest safeguarding requirements and protections, including an application to the Circuit Court. Additionally, under Part 6 of the 2015 Act, a ward who reaches the age of 18 must have a capacity declaration made by the Court in respect of that same ward. The court application processes under these Parts were included with the safeguarding of adults in mind.
Safeguarding the rights of those with decision-making difficulties and privileging a person’s will and preferences were key principles of the new framework of supported decision-making arrangements that were introduced by the 2015 Act. As part of the process for putting in place any decision-making arrangement, adults must undergo a ‘functional capacity assessment’ performed by a medical practitioner or other specified healthcare professional, whereby capacity is assessed on an issue and time-specific basis. In addition, as part of any Court application process, the adult will be provided the opportunity to be heard. These safeguarding measures work to ensure that the adult’s will and preferences are at the forefront of any decisions made regarding the adult, with particular regard to who will serve as the adult’s decision-making supporter.
I appreciate the role of many parents and families as strong advocates for adults with diminished capacity. However, the 2015 Act was drafted in a manner that ensures that the interests of those with capacity difficulties are placed front and centre, to account for situations where parents and family members may not have maintained such a strong relationship with their adult children, and where the absence of the Court process may be a safeguarding risk. This ensures that the appropriate and necessary safeguards are in place to protect the rights and autonomy of those with diminished decision-making capacity.
It is important to note that under the 1995 Legal Aid Act, a person is eligible for legal aid in circumstances where an application is to be made to Court for the appointment of a decision-making representative or for a declaration of capacity regarding a ward of court. The Legal Aid Board can provide legal advice and legal representation in proceedings before the Court; however, a financial means test may apply. More information can be found on the Legal Aid Board website at: www.legalaidboard.ie/our-legal-aid-service/how-we-can-help-you/assisted-decision-making-act-2015/
Applications for legal services to the Legal Aid Board seeking legal representation in respect of applications to Court for the appointment of a decision-making representative are treated with priority by the Legal Aid Board.
A review of the operation and effectiveness of the 2015 Act is provided for under the legislation and is also a commitment in the Programme for Government. This review will take place in consultation with a wide range of stakeholders and will be informed by feedback from those with lived experiences of the provisions of the Act.
