Assisted Decision-Making - Progress, Pitfalls, and the Path Ahead

Two years on from the introduction of Assisted Decision-Making laws, Ireland’s legal framework for capacity and decision support continues to evolve. The move away from the wardship system was a long-overdue reform, designed to provide greater autonomy and clarity for those requiring decision support. However, practical challenges remain for healthcare providers, clinicians, and those working with vulnerable adults.

The system in practice

Under the Act, individuals requiring decision support can avail of a three-tiered structure:

• Decision-Making Assistance
• Co-Decision-Maker
• Decision-Making Representative

Additionally, two further mechanisms—Advance Healthcare Directives and Enduring Powers of Attorney (EPA)—allow individuals to set out their preferences in anticipation of future incapacity.

Persistent challenges

While the reform has been widely welcomed, the introduction of this new system in the Circuit Court has meant that judges, court staff, and legal practitioners have had to adapt to new processes, documentation, and evolving judicial guidance.

The abolition of wardship has also left a gap in the system for some vulnerable individuals who do not fit into the new framework. Healthcare professionals have had to resort to the High Court’s inherent jurisdiction to protect some of the most vulnerable in our society — a process that is neither straightforward nor sustainable as a long-term solution.

Enduring powers of attorney: an area of concern

Enduring Powers of Attorney remain one of the most debated aspects of the Act. Practical issues around their creation, execution, and notification requirements have raised concerns among legal practitioners and affected individuals.

In particular, the statutory requirement to notify spouses and adult children of the creation of an EPA—regardless of family dynamics—continues to be contentious. There is a real risk that these complexities may deter individuals from putting an EPA in place, potentially leading to increased court applications down the line.

Transitioning wards of court

The three-year deadline to transition all wards of court by 26 April 2026 is fast approaching, and even The President of the High Court has questioned whether it is appropriate to force people to come out of wardship where only a very low number of voluntary discharge applications have been made.

Looking ahead

Two years on, the foundations have been laid and as our Assisted Decision-Making framework matures, further refinements and interpretation are inevitable to strike the key balance between respecting autonomy and protecting the most vulnerable in our society.

If you require advice about any aspect of the Act, from compliance and training to urgent court applications, please contact a member of our Health & Prosecutions team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.