673. Deputy Aidan Farrelly asked the Minister for Children, Disability and Equality whether she will consider urgent reform to introduce a streamlined, affordable, and proportionate decision making pathway for adults with lifelong and profound intellectual disabilities; and whether she will address the lack of provision for successor decision-makers in the current system. [51596/26]

The Assisted Decision-Making (Capacity) Act 2015, which commenced in April 2023, represents a major change in the way capacity is viewed in the State. It brought about an end to wardship in the State for adults, by repealing the Lunacy Regulation (Ireland) Act 1871 and replacing the wards of court system with the new rights-based framework for appointing tiered decision support arrangements that is now in effect. In that regard it provides a clear pathway for decision-making by adults with diminished decision-making capacity where it is necessary for a formal decision support arrangement to be put in place.

Furthermore, it represents a crucial shift away from a ‘best interests’ approach to a rights-based approach to capacity, privileging a person’s will and preferences. The Act places individuals at the centre of decisions that affect them and provides for the necessary supports to enable persons with capacity difficulties to retain as much control as is possible over their own affairs and the decisions which affect them. As a reform it was long called-for by disability groups, safeguarding groups, civil society, wards of court and their committees, and was welcomed as a significant step towards promoting choice, autonomy and dignity.

The Act realises Ireland’s ambitions to meet certain requirements under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and its implementation is underpinned by a set of guiding principles arising from those obligations. In that regard, the Act is based on the long-established principle that every adult is presumed to have capacity unless it is shown otherwise in relation to a particular decision at a particular time. Capacity is therefore decision-specific and time-specific rather than determined by a person's diagnosis or disability. The guiding principles also require that every practicable effort be made to support a person to make their own decisions before any formal decision-making support arrangement is considered.

Where it is necessary for a formal decision support arrangement to be put in place, this must be the least restrictive on a person’s rights and freedoms, and will be determined by the adult’s capacity and tailored to their decision support needs. Such arrangements, including co-decision-making agreements and decision-making representation orders, may cover decisions regarding personal welfare and/or property and affairs, and are monitored and overseen by the Decision Support Service to ensure that they are operating as intended.

The fee to register a co-decision-making agreement with the Decision Support Service is €90. Some people may not have to pay this fee, depending on their individual circumstances, including income and dependents. There may also be a fee payable to a doctor or other healthcare professional in respect of the capacity assessment. The Department does not determine the cost of such medical fees.

There is no cost for registering a decision-making representation order with the Decision Support Service. Court fees will apply for applications to court for a declaration about a person’s capacity in order to make a decision-making representation order. These fees are set by the Courts Service (www.courts.ie/). There will also be legal and medical fees associated with an application. The Department does not determine such fees.

The Legal Aid Board supports family members and others in making applications to the Court, subject to financial eligibility. They also provide independent legal representation to the relevant person who does not have to be financially eligible for legal services. 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.

In relation to the provision for ‘successor decision-makers’, it is possible for the court to appoint more than one decision-making representative and to state they are to act jointly and severally. It should be clarified with the court when the order is being granted whether this allows a surviving decision-making representative to continue to act if one decision-making representative dies. This would remove the need for a new application.