Assisted Decision-Making (Capacity) Act 2015

PART 1 Preliminary and General

1.. Short title and commencement

1. (1) This Act may be cited as the Assisted Decision-Making (Capacity) Act 2015.

(2) Subject to subsection (3), this Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Health, may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

(3) Part 8 and the other provisions of this Act in so far as they relate to an advance healthcare directive or designated healthcare representative, or both, shall come into operation on such day or days as the Minister for Health, after consultation with the Minister, may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

2. Interpretation — general

2. (1) In this Act—

"act" includes a decision (howsoever described), an omission and a course of conduct;

"Act of 1965" means the Succession Act 1965;

"Act of 1995" means the Civil Legal Aid Act 1995;

"Act of 1996" means the Powers of Attorney Act 1996;

"Act of 2001" means the Mental Health Act 2001;

"Act of 2014" means the Companies Act 2014;

"advance healthcare directive" shall be construed in accordance with section 82;

"approved nursing home" has the meaning assigned to it by section 3 of the Nursing Homes Support Scheme Act 2009;

"attorney" has the meaning assigned to it by section 59(1);

"attorney under the Act of 1996" means a person appointed under an enduring power under the Act of 1996;

"capacity" means decision-making capacity and shall be construed in accordance with section 3;

"child" includes a step-child;

"co-decision-maker" has the meaning assigned to it by section 16;

"co-decision-making agreement" has the meaning assigned to it by section 16;

"co-decision-maker appointer" has the meaning assigned to it by section 16;

"cohabitant" means cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

"court" means Circuit Court;

"court friend", in relation to a relevant person, means a person appointed by the Director pursuant to section 100(1) to be a court friend for the relevant person;

"customary occasion" means—

(a) the occasion or anniversary of a birth, marriage or civil partnership, or

(b) any other occasion on which gifts are customarily made within families or among friends or associates;

"debt settlement arrangement" has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012;

"decision" includes a class of decisions;

"decision-making assistant" has the meaning assigned to it by section 9;

"decision-making assistance agreement" has the meaning assigned to it by section 9;

"decision-making assistant appointer" has the meaning assigned to it by section 9;

"decision-making order" means an order under section 38(2)(a) as the order is in force from time to time;

"decision-making representative", in relation to a relevant person, means a person appointed pursuant to a decision-making representation order to make one or more than one decision specified in the order on behalf of the relevant person;

"decision-making representation order" means an order under section 38(2)(b) as the order is in force from time to time;

"designated centre" has the meaning it has in section 2 of the Health Act 2007;

"designated healthcare representative" has the meaning assigned to it by section 82;

"Director" has the meaning given to it in section 94;

"enduring power of attorney" has the meaning assigned to it by section 59(2);

"enduring power under the Act of 1996" means an enduring power referred to in section 4 of the Act of 1996 which was created in accordance with the provisions of that Act;

"general visitor" means a person appointed to be a general visitor by the Director pursuant to section 99(1);

"guiding principles" means the principles set out in section 8(2) to (10);

"healthcare professional" means a member of any health or social care profession whether or not the profession is a designated profession within the meaning of section 3 of the Health and Social Care Professionals Act 2005;

"intervener", in relation to an intervention in respect of a relevant person, means the person referred to in paragraph (a), (b), (c), (d) or (e) of the definition of "intervention" making the intervention;

"intervention", in relation to a relevant person, means an action taken under this Act, orders made under this Act or directions given under this Act in respect of the relevant person by—

(a) the court or High Court,

(b) a decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative,

(c) the Director,

(d) a special visitor or general visitor, or

(e) a healthcare professional;

"legal practitioner" means a person who is a practising barrister or practising solicitor;

"matter concerned", in relation to a relevant person, means—

(a) in the case of a relevant person who falls within paragraph (a) of the definition of "relevant person", the matter or matters in respect of which the person’s capacity is in question or may shortly be in question, and

(b) in the case of a relevant person who falls within paragraph (b) of the definition of "relevant person", the matter or matters in respect of which the person lacks capacity;

F1["Minister", other than inPart 8, means the Minister for Children, Equality, Disability, Integration and Youth;]

"owner", in relation to a designated centre or mental health facility, includes a person managing a designated centre or mental health facility, or a director (including a shadow director within the meaning of section 222 of the Act of 2014) of, or a shareholder in or an employee or agent of, a company which owns or manages such a centre or facility;

"person who lacks capacity" means a relevant person who falls within paragraph (b) of the definition of "relevant person" but only in relation to the matter or matters by virtue of which he or she falls within that paragraph;

"personal insolvency arrangement" has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012;

"personal welfare", in relation to a relevant person, means one or more of the following matters:

(a) accommodation, including whether or not the relevant person should live in a designated centre ;

(b) participation by the relevant person in employment, education or training;

(c) participation by the relevant person in social activities;

(d) decisions on any social services provided or to be provided to the relevant person;

(e) healthcare;

F2[(ea) participation by the relevant person in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety or performance of medical devices;]

(f) other matters relating to the relevant person’s well-being;

"property and affairs", in relation to a relevant person, means one or more of the following matters:

(a) the custody, control and management of some or all of the relevant person’s property or property rights;

(b) the sale, exchange, mortgaging, charging, gift or other disposition of the relevant person’s property;

(c) the acquisition of property by the relevant person, or on his or her behalf;

(d) the carrying on, on behalf of the relevant person, of any profession, trade or business which may lawfully be carried on by a person other than the relevant person;

(e) the making of a decision which will have the effect of dissolving a partnership in which the relevant person is a partner;

(f) the carrying out of any contract entered into by the relevant person;

(g) the discharge of the relevant person’s debts, tax and duty liabilities and obligations or other obligations;

(h) the execution or exercise of any of the powers or discretions vested in the relevant person as a tenant for life;

(i) providing, to the extent that the relevant person might have been expected to do so, for the needs of a decision-making assistant, a co-decision-maker, an attorney, a designated healthcare representative or a decision-making representative for the relevant person or F1[for the needs of other persons];

(j) the conduct of proceedings before any court or tribunal, whether in the name of the relevant person or on his or her behalf;

(k) making an application for housing, social welfare or other benefits or otherwise protecting or advancing the interests of the relevant person in relation to those matters;

"registered medical practitioner" has the meaning assigned to it by section 2 of the Medical Practitioners Act 2007;

"registered provider" has the meaning assigned to it by section 2 of the Health Act 2007;

"relevant decision"—

(a) in relation to a decision made, or to be made, by a decision-making assistant appointer with the assistance of a decision-making assistant for that appointer, means a decision on a matter the subject of the decision-making assistance agreement which appointed that decision-making assistant and which falls within the scope of that agreement,

(b) in relation to a decision made, or to be made, jointly by a co-decision-maker appointer and a co-decision-maker for that appointer, means a decision on a matter the subject of the co-decision-making agreement which appointed that co-decision-maker and which falls within the scope of that agreement,

(c) in relation to a decision made, or to be made, by a court on behalf of a relevant person, means a decision on a matter the subject of the decision-making order and which falls within the scope of that order,

(d) in relation to a decision made, or to be made, by a decision-making representative on behalf of a relevant person, means a decision on a matter the subject of the decision-making representation order which appointed that decision-making representative and which falls within the scope of that order,

(e) in relation to a decision made, or to be made, by an attorney on behalf of a relevant person, means a decision on a matter the subject of the enduring power of attorney which appointed that attorney and which falls within the scope of that power, and

(f) in relation to a decision made, or to be made, under an advance healthcare directive (and whether or not there is a designated healthcare representative under the directive), means a decision which falls within the scope of that directive;

"relevant information", in relation to a relevant person, means personal records relating to the relevant person or other information that the relevant person is entitled to and that is or are required in relation to a relevant decision;

"relevant person" means—

(a) a person whose capacity is in question or may shortly be in question in respect of one or more than one matter,

(b) a person who lacks capacity in respect of one or more than one matter, or

(c) a person who falls within paragraphs (a) and (b) at the same time but in respect of different matters,

as the case requires;

"relevant powers" has the meaning assigned to it by section 82;

F3["safety or barring order" means a safety order or barring order made under theDomestic Violence Act 1996or under the Domestic Violence Act 2018;]

"special visitor" means a person appointed to be a special visitor by the Director pursuant to section 99(1);

"suitable"—

(a) in relation to the appointment of a co-decision-maker for a relevant person, shall be construed in accordance with section 17(2), and

(b) in relation to the appointment of a decision-making representative for a relevant person, shall be construed in accordance with section 38(5);

F2["treatment", in relation to a person, means an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person, and includes life sustaining treatment;]

"wardship court" has the meaning assigned to it by section 53.

(2) For the purposes of this Act, persons (howsoever described in this Act) shall not be considered to have ceased cohabiting by reason only of—

(a) one or both residing in or entering a designated centre or mental health facility, or

(b) one or both residing in or entering an institution (of whatever kind) for purposes relating to—

(i) a physical or mental condition of the person concerned, or

(ii) the imprisonment, or the taking into lawful custody, of the person concerned.

3. Person’s capacity to be construed functionally

3. (1) Subject to subsections (2) to (6), for the purposes of this Act, a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.

(2) A person lacks the capacity to make a decision if he or she is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information long enough to make a voluntary choice,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

(3) A person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means).

(4) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him or her from being regarded as having the capacity to make the decision.

(5) The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at another time.

(6) The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.

(7) For the purposes of this section, information relevant to a decision shall be construed as including information about the reasonably foreseeable consequences of—

(a) each of the available choices at the time the decision is made, or

(b) failing to make the decision.

4. Circuit Court to have exclusive jurisdiction under this Act except for certain matters reserved for High Court, etc.

4. (1) Subject to subsection (3), F6[sections 37] and 89(2), Parts 6, 10 and 11, the Circuit Court shall have exclusive jurisdiction under this Act and the performance of the functions of that court conferred by this section shall be within the jurisdiction of the circuit of the Circuit Court and such jurisdiction shall be exercised by the circuit of the Circuit Court F6[in which the following persons are residing or carrying on business at the time the application or appeal concerned is made, or have resided at any time during the period of 3 years immediately prior to the making of the application or the lodging of the appeal concerned:]

F6[(a) the relevant person (including a ward) the subject of an application under this Act;

(b) in the case of proceedings undersection 15, the decision-making assistant appointer, whose decision-making assistant or decision-making assistance agreement is the subject of an application or appeal under that section;

(c) in the case of proceedings underPart 4, the co-decision-maker appointer, whose co-decision-maker or co-decision-making agreement is the subject of an application or appeal under that Part;

(d) in the case of proceedings undersection 46or47, the relevant person, whose decision-making representative is the subject of an application or appeal under the section concerned;

(e) in the case of proceedings underPart 7—

(i) the donor, whose attorney, enduring power of attorney or instrument creating an enduring power of attorney, or

(ii) the donor under the Act of 1996, whose attorney under the Act of 1996, enduring power under the Act of 1996 or instrument creating an enduring power under the Act of 1996,

is the subject of an application or appeal under that Part;

(f) in the case of proceedings undersection 88or89, the directive-maker, whose designated healthcare representative is the subject of an application under the section concerned;

(g) in the case of proceedings undersection 125or127, the adult the subject of the measure that is the subject of an application under the section concerned.]

(2) An application to the Circuit Court under this Act may be made—

(a) in such office of, or attached to, the Circuit Court within the circuit concerned,

(b) in such combined court office (within the meaning of section 14 of the Courts and Court Officers Act 2009) within the circuit concerned, or

(c) in such office of the Courts Service, within the circuit concerned, designated by the Courts Service for the purpose of this Act,

as may be prescribed by rules of court.

(3) Notwithstanding any other provision of this Act—

(a) any decision regarding the donation of an organ from a living donor shall, where the donor is a person who lacks capacity, be determined by the High Court, and

(b) where an application in connection with the withdrawal of life-sustaining treatment from a person who lacks capacity comes before the courts for adjudication, that application shall be heard by the High Court.

(4) Nothing in this Act shall be construed as authorising any person to give consent for a non-therapeutic sterilisation procedure to be carried out on a person who lacks capacity.

F7[(5) Nothing in this Act shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity.]

4A. F8[Regulations

4A.(1) The Minister may make regulations for the purposes of this Act (other thanPart 8) including regulations prescribing any matter or thing which is referred to in this Act (other thanPart 8) as prescribed or to be prescribed or to be the subject of regulations made by him or her or for the purpose of enabling any provision of this Act (other thanPart 8) to have full effect.

(2) Regulations under this Act (other thanPart 8) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.]

5. Laying of regulations

5. Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

6. Expenses

6. The expenses incurred by the Minister or the Minister for Health in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

7. Repeals

7. (1) The Marriage of Lunatics Act 1811 is repealed.

(2) Subject to the provisions of Part 6, the Lunacy Regulation (Ireland) Act 1871 is repealed.

PART 2 Principles that Apply before and during Intervention in respect of Relevant Persons

8. Guiding principles

8. (1) The principles set out in subsections (2) to (10) shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly.

(2) It shall be presumed that a relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.

(3) A relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.

(4) A relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.

(5) There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person.

(6) An intervention in respect of a relevant person shall—

(a) be made in a manner that minimises—

(i) the restriction of the relevant person’s rights, and

(ii) the restriction of the relevant person’s freedom of action,

(b) have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property,

(c) be proportionate to the significance and urgency of the matter the subject of the intervention, and

(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the intervention.

(7) The intervener, in making an intervention in respect of a relevant person, shall—

(a) permit, encourage and facilitate, in so far as is practicable, the relevant person to participate, or to improve his or her ability to participate, as fully as possible, in the intervention,

(b) give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable,

(c) take into account—

(i) the beliefs and values of the relevant person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors which the relevant person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

(d) unless the intervener reasonably considers that it is not appropriate or practicable to do so, consider the views of—

(i) any person named by the relevant person as a person to be consulted on the matter concerned or any similar F9[matter,]

F9[(ii) any decision-making assistant, co-decision-maker, decision-making representative, attorney or attorney under the Act of 1996 for the relevant person,]

F10[(iii) ...]

F11[(iv) a designated healthcare representative within the meaning ofPart 8for the relevant person, where the intervention relates to treatment and an advance healthcare directive within the meaning ofPart 8is applicable,]

(e) act at all times in good faith and for the benefit of the relevant person, and

(f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant.

(8) The intervener, in making an intervention in respect of a relevant person, may consider the views of—

(a) any person engaged in caring for the relevant person,

(b) any person who has a bona fide interest in the welfare of the relevant person, or

(c) healthcare professionals.

(9) In the case of an intervention in respect of a person who lacks capacity, regard shall be had to—

(a) the likelihood of the recovery of the relevant person’s capacity in respect of the matter concerned, and

(b) the urgency of making the intervention prior to such recovery.

(10) The intervener, in making an intervention in respect of a relevant person—

(a) shall not attempt to obtain relevant information that is not reasonably required for making a relevant decision,

(b) shall not use relevant information for a purpose other than in relation to a relevant decision, and

(c) shall take reasonable steps to ensure that relevant information—

(i) is kept secure from unauthorised access, use or disclosure, and

(ii) is safely disposed of when he or she believes it is no longer required.

PART 3 Assisted Decision-Making

9. Definitions — Part 3

9. In this Part—

“appointer” means a decision-making assistant appointer;

“decision-making assistant”, in relation to an appointer, means the person who the appointer has, under section 10(1), appointed to assist the appointer in making decisions on the appointer’s personal welfare or property and affairs, or both, in compliance with regulations made under F12[section 10(4)and specifications made undersection 10(4A)];

“decision-making assistance agreement” means a decision-making assistance agreement referred to in section 10(2) as such agreement is in force from time to time;

“decision-making assistant appointer” means a person who has, under section 10(1), appointed another person to assist the first-mentioned person in making decisions on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with regulations made under F12[section 10(4)and specifications made undersection 10(4A)].

10. Decision-making assistance agreement

10. (1) Subject to section 11, a person who has attained the age of 18 years and who considers that his or her capacity is in question or may shortly be in question may appoint another person who has also attained that age to assist the first-mentioned person in making one or more than one decision on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with regulations made under F13[subsection (4)and specifications made undersubsection (4A)].

(2) An appointment as a decision-making assistant shall be made in a decision-making assistance agreement which is in compliance with regulations made under F13[subsection (4)and specifications made undersubsection (4A)].

(3) A decision-making assistance agreement may be revoked by the appointer or by the decision-making assistant at any time and, subject to agreement between the appointer and the decision-making assistant, may be varied at any time.

F13[(4) The Minister shall make regulations as respects decision-making assistance agreements, including—

(a) prescribing procedures and requirements relating to the execution,variation and revocation of a decision-making assistance agreement,

(b) specifying the personal welfare or property and affairs, or both,which may be specified in a decision-making assistance agreement,

(c) providing for the giving by the appointer of notice of the execution, variation or revocation of a decision-making assistance agreement—

(i) to the Director, and

(ii) to other specified persons, and whether or not by reference to persons who, under this Act, are required to be notified of an application made under this Act.]

F14[(4A) The Director may, with the consent of the Minister, specify in writing the following:

(a) the form of a decision-making assistance agreement;

(b) the information to be included in or annexed to a decision-making assistance agreement for the purpose of ensuring that any document purporting to create a decision-making assistance agreement incorporates adequate information as to the effect of making or accepting the appointment;

(c) that the following statements shall be included in a decision-making assistance agreement:

(i) by the appointer, that he or she has read and understands the information as to the effect of making the appointment or that such information has been explained to the appointer, by a person other than the proposed decision-making assistant;

(ii) by the decision-making assistant, that he or she understands and undertakes to act in accordance with the functions of a decision-making assistant, including the duty to act in accordance with the guiding principles;

(d) the form of attestation of the signatures of the appointer and decision-making assistant by a person other than the appointer or the proposed decision-making assistant;

(e) the forms to be used in connection with the execution, variation and revocation of a decision-making assistance agreement; and

(f) the form of notice to be given by the appointer of the execution, variation or revocation of a decision-making assistance agreement.]

(5) An appointer may, in the decision-making assistance agreement, appoint more than one person as a decision-making assistant and may specify that the decision-making assistants shall act—

(a) jointly,

(b) jointly and severally, or

(c) jointly in respect of some matters and jointly and severally in respect of other matters.

11. Persons who are not eligible to be decision-making assistants

11. (1) A person shall not be eligible for appointment as a decision-making assistant if he or she—

(a) has been convicted of an offence in relation to the person or property of the person who intends to appoint him or F15[her, or the person or property of a child of that person],

(b) has been the subject of a safety or barring order in relation to the person who intends to appoint him or F15[her, or a child of that person],

(c) is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,

(d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act,

(f) is a person who is—

(i) the owner or registered provider of a designated centre or mental health facility in which the person who intends to appoint him or her as decision-making assistant resides, or

(ii) residing with, or an employee or agent of, such owner or registered provider, as the case may be,

unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the person who intends to appoint him or her as decision-making assistant,

(g) has been convicted of an offence under F15[section 15A, 34,] 80, 90 or 145, or

(h) previously acted as decision-making assistant for the person who intends to appoint a decision-making assistant and there was a finding by the court under this Part that he or she should not continue as decision-making assistant for that person.

(2)Subsection (1)(c), (d) and (e) shall not apply where it is proposed to give the person functions relating to personal welfare only.

12. Nullity

12. Where an event specified in any of paragraphs (a) to (c) occurs, a decision-making assistance agreement shall, with effect from the date on which the event occurs, be null and void to the extent that the decision-making assistance agreement relates to a relevant decision where there is, in respect of the relevant decision—

(a) a decision-making order, a decision-making representation order or a co-decision-making agreement in relation to the appointer,

(b) an advance healthcare directive made by the appointer and the appointer lacks capacity, or

(c) an enduring power of attorney or enduring power under the Act of 1996 made by the appointer that has entered into force.

13. Disqualification as decision-making assistant

13. (1) A decision-making assistant shall, with effect from the date on which an event specified in paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the spouse of the appointer and subsequently—

(a) the marriage is annulled or dissolved either—

(i) under the law of the State, or

(ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State,

(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect,

(c) a written agreement to separate is entered into between the spouses, or

(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.

(2) A decision-making assistant shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the civil partner of the appointer and subsequently—

(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—

(i) under the law of the State, or

(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,

(b) a written agreement to separate is entered into between the civil partners, or

(c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.

(3) Subject to section 2(2), a decision-making assistant shall, at the expiry of the period referred to in this subsection, and unless the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the cohabitant of the appointer and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.

(4) Subject to subsection (5), where, subsequent to the appointment of a decision-making assistant—

(a) the decision-making assistant is convicted of an offence in relation to the person or property of the appointer or the person or property of a child of the appointer,

(b) a safety or barring order is made against the decision-making assistant in relation to the appointer or a child of the appointer,

(c) the decision-making assistant becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,

(d) the decision-making assistant becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) the decision-making assistant becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act,

(f) the decision-making assistant becomes—

(i) the owner or registered provider of a designated centre or mental health facility in which the appointer resides, or

(ii) a person residing with, or an employee or agent of, such owner or registered provider, as the case may be,

unless the decision-making assistant is a spouse, civil partner, cohabitant, parent, child or sibling of the appointer,

(g) the decision-making assistant is convicted of an offence under F16[section 15A, 34,] 80, 90 or 145, or

(h) the decision-making assistant—

(i) enters into a decision-making assistance agreement as a relevant person,

(ii) enters into a co-decision-making agreement as a relevant person,

F16[(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director undersection 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or]

(iv) becomes the subject of a declaration under section 37(1),

the decision-making assistant shall be disqualified from being a decision-making assistant for the appointer with effect from the date on which the decision-making assistant falls within any of paragraphs (a) to (h).

(5)Subsection (4)(c), (d) and (e) shall not apply insofar as the decision-making assistant’s functions under the decision-making assistance agreement relate to personal welfare.

14. Performance of functions of decision-making assistant

14. (1) In exercising his or her functions as specified in the decision-making assistance agreement, the decision-making assistant shall—

(a) assist the appointer to obtain the appointer’s relevant information,

(b) F17[assist] the appointer by explaining relevant information and considerations relating to a relevant decision,

(c) ascertain the will and preferences of the appointer on a matter the subject or to be the subject of a relevant decision and assist the appointer to communicate them,

(d) assist the appointer to make and express a relevant decision, and

(e) endeavour to ensure that the appointer’s relevant decisions are implemented.

(2) A decision-making assistant shall not make a decision on behalf of the appointer.

(3) A relevant decision taken by the appointer with the assistance of the decision-making assistant is deemed to be taken by the appointer for all purposes.

15. Complaints in relation to decision-making assistants

15. (1) A person may make a complaint in writing to the Director concerning F18[one or more of] of the following matters:

(a) that a decision-making assistant has acted, is acting, or is proposing to act outside F18[the scope of, or in breach of,] his or her functions as specified in the decision-making assistance F18[agreement, or in breach of this Act];

(b) that a decision-making assistant is unable to perform his or her functions under the decision-making assistance agreement;

(c) that fraud, coercion or undue pressure was used to induce the appointer F18[to enter into, or to vary or revoke, the decision-making assistance agreement].

F19[(1A) Following the receipt of a complaint undersubsection (1)the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject tosubsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the "initial investigation period").

(1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.]

(2) F18[The Director shall, as soon as is practicable after having formed a view undersubsection (1A)]—

(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the F18[complaint,]

F19[(aa) notwithstandingparagraph (a), where he or she is of the view that the complaint is well founded and that—

(i) the provision of clarification by him or her to the decision-making assistant regarding the role of the decision-making assistant would be an appropriate resolution, or

(ii) the subject matter of the complaint could be appropriately resolved undersection 96(4),

the Director may, not later than 3 months after having formed a view undersubsection (1A), provide the clarification referred to insubparagraph (i), or proceed to resolve the complaint as soon as possible undersection 96(4), as the case may be, and]

(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.

(3) A person who receives a notification under subsection (2)(b) may, not later than F18[3 months] after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.

(4) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an F18[investigation, to which this section shall, with any necessary modifications, apply].

F19[(4A) Wheresubsection (2)(aa)applies and the Director has provided the clarification referred to insubparagraph (i)of that subsection or has resolved the complaint undersection 96(4)as referred to insubparagraph (ii)of that subsection, the Director may—

(a) request further information regarding the outcome of the clarification or resolution, as the case may be, or

(b) request confirmation that the complaint has been resolved,

from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate.

(4B) If the Director is not satisfied, following the receipt of the information or confirmation referred to insubsection (4A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court in accordance withsubsection (2)(a)or may take such other steps as he or she considers appropriate in order to resolve the complaint.]

(5) The court may—

(a) pursuant to an application to it under subsection (2)(a) F20[…] or

(b) pursuant to an appeal under F18[subsection (3)or(7)(b)],

make a determination in relation to a matter specified in subsection (1) and may, if it considers it appropriate, determine that a decision-making assistant shall no longer act as such in relation to the appointer concerned.

F19[(6) The Director shall, in accordance with this section, investigate a complaint undersubsection (1)unless in his or her opinion there has been undue delay in making the complaint.

(7) A decision by the Director undersubsection (6)not to investigate a complaint—

(a) shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and

(b) may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.]

15A. F21[Offence in relation to decision-making assistance agreement

15A.(1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a decision-making assistance agreement commits an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.

(2) The reference insubsection (1)to coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, make, vary or revoke a decision-making assistance agreement.]

PART 4 Co-Decision-Making

16. Definitions — Part 4

16. In this Part—

“appointer” means a co-decision-maker appointer;

“authenticated”, in relation to a co-decision-making agreement which is registered, means bearing the signature of the Director, the date on which his or her signature was applied and the date of registration of the co-decision-making agreement;

“co-decision-maker”, in relation to an appointer, means the suitable person who the appointer appoints under section 17, to jointly make with the appointer decisions on the appointer’s personal welfare or property and affairs, or both, in compliance with F22[this Part, regulations made undersection 31and specifications made undersection 31A];

“co-decision-maker appointer” means a person who appoints a co-decision-maker under section 17;

“co-decision-making agreement” means a co-decision-making agreement referred to in section 17(3);

“suitable” shall be construed in accordance with section 17(2).

17. Co-decision-making agreement

17. (1) Subject to the provisions of this section and section 18, a person who has attained the age of 18 years and who considers that his or her capacity is in question or may shortly be in question may appoint a suitable person who has also attained that age to jointly make with the first-mentioned person one or more than one decision on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with F23[this Part, regulations made undersection 31and specifications made undersection 31A].

F24[(1A) A person in relation to whom a decision-making representation order was made in circumstances wheresection 38(1)(a)orsection 55(4)applied may appoint a co-decision-maker in accordance with this section, and this Part and the regulations and specifications made thereunder shall apply to that appointment with any necessary modifications.]

(2) A person is suitable for appointment as a co-decision-maker if he or she—

(a) is a relative or friend of the appointer who has had such personal contact with the appointer over such period of time that a relationship of trust exists between them, and

(b) is able to perform his or her functions under the co-decision-making agreement.

(3) An appointment as a co-decision-maker shall be made in writing in a co-decision-making agreement that is in compliance with F23[this section, regulations made undersection 31and specifications made undersection 31A].

(4) Notwithstanding the definition of “property and affairs” in section 2 an appointer shall not include in a co-decision-making agreement provision for the disposal of his or her property by way of gift.

(5) A co-decision-making agreement shall contain the following:

(a) the name, date of birth and contact details of the appointer;

(b) subject to subsection (6), the signature of the appointer and the date that he or she signed the agreement;

(c) the name, date of birth and contact details of the co-decision-maker;

(d) the signature of the co-decision-maker and the date that he or she signed the agreement;

(e) the signatures of the 2 witnesses referred to in subsection (7)(a).

(6) A co-decision-making agreement may be signed on behalf of the appointer by a person who has attained the age of 18 years and who is not the co-decision-maker or one of the witnesses referred to in subsection (7)(a) if—

(a) the appointer is unable to sign the agreement,

(b) the appointer is present and directs that the agreement be signed on his or her behalf by that person, and

(c) the signature of the person is witnessed in accordance with subsection (7)(b).

(7) (a) The appointer, or the person signing on his or her behalf in accordance with subsection (6), and the co-decision-maker shall sign the co-decision-making agreement in the presence of each other and in the presence of 2 witnesses—

(i) each of whom has attained the age of 18 years,

(ii) of whom at least one is not an immediate family member of the appointer or the co-decision-maker, and

(iii) neither of whom is an employee or agent of the co-decision-maker.

(b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the appointer, or the person signing on his or her behalf, and the signature of the co-decision-maker by applying his or her own signature to the co-decision-making agreement.

(8) An appointer may appoint more than one person as a co-decision-maker but may not—

(a) appoint in the same co-decision-making agreement more than one person as a co-decision-maker, or

(b) appoint in a co-decision-making agreement a co-decision-maker in respect of a relevant decision which is the subject of another co-decision-making agreement.

(9) The Director shall, on a request being made of him or her by a person who intends to appoint a co-decision-maker or a person who is proposed as a co-decision-maker, or both, provide information to the person requesting with regard to making and entering into the co-decision-making agreement.

(10) In this section, “immediate family member” means—

(a) a spouse, civil partner, or cohabitant,

(b) a child, son-in-law or daughter-in-law,

(c) a parent, step-parent, mother-in-law or father-in-law,

(d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law,

(e) a grandparent or grandchild,

(f) an aunt or uncle, or

(g) a nephew or niece.

18. Persons who are not eligible to be co-decision-makers

18. (1) Subject to subsection (2), a person shall not be eligible for appointment as a co-decision-maker if he or she—

(a) has been convicted of an offence in relation to the person or property of the person who intends to appoint a co-decision-maker, or the person or property of a child of that person,

(b) has been the subject of a safety or barring order in relation to the person who intends to appoint a co-decision-maker or a child of that person,

(c) is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,

(d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act,

(f) is a person who is—

(i) the owner or registered provider of a designated centre or mental health facility in which the person who intends to appoint him or her as co-decision- maker resides, or

(ii) residing with, or an employee or agent of, such owner or registered provider, as the case may be,

unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the person who intends to appoint him or her as co-decision-maker,

(g) has been convicted of an offence under F25[section 15A, 34,] 80, 90 or 145, or

(h) previously acted as co-decision-maker for the person who intends to appoint a co-decision-maker and there was a finding by the court that he or she should no longer act as co-decision-maker for that person.

(2) Paragraphs (1)(c), (d) and (e) shall not apply where the co-decision-making agreement relates only to relevant decisions concerning personal welfare.

19. Performance of functions of co-decision-maker

19. (1) In exercising his or her functions as specified in the co-decision-making agreement, a co-decision-maker shall—

(a) advise the appointer by explaining relevant information and considerations relating to a relevant decision,

(b) ascertain the will and preferences of the appointer on a matter the subject of, or to be the subject of, a relevant decision and assist the appointer with communicating the appointer’s will and preferences,

(c) assist the appointer to obtain the appointer’s relevant information,

(d) discuss with the appointer the known alternatives and likely outcomes of a relevant decision,

(e) make a relevant decision jointly with the appointer, and

(f) make reasonable efforts to ensure that a relevant decision is implemented as far as practicable.

(2) A co-decision-maker shall be entitled to be reimbursed out of the assets of the appointer in respect of his or her fair and reasonable costs and expenses which are—

(a) reasonably incurred in performing his or her functions as co-decision-maker,

(b) vouched for in a manner acceptable to the Director, and

(c) included in a report submitted by the co-decision-maker under section 27.

(3) A co-decision-maker shall not be entitled to remuneration for performing his or her functions as co-decision-maker.

(4) Where—

(a) after an application has been made under section 21 to register a co-decision- making agreement but before registration of the agreement, or

(b) after registration of a co-decision-making agreement,

the co-decision-maker or any person specified in section 21(3) has reason to believe that the appointer’s capacity has—

(i) deteriorated to the extent that he or she lacks capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement even with the assistance of a co-decision-maker, or

(ii) improved to the extent that he or she has capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement,

he or she shall promptly inform the Director of that belief.

(5) In this Part, a reference to a relevant decision being made jointly means that a co-decision-maker—

(a) shall acquiesce with the wishes of the appointer in respect of the relevant decision, and

(b) shall not refuse to sign a document referred to in section 23(3),

unless it is reasonably foreseeable that such acquiescence or signature, as the case may be, will result in serious harm to the appointer or to another person.

(6) A co-decision-maker shall not have authority to make decisions jointly with a relevant person other than the relevant decisions specified in the co-decision-making agreement.

(7) Where an appointer has more than one co-decision-maker, each of the co-decision-makers shall exercise his or her functions in a manner which is not inconsistent with the functions exercisable by another co-decision-maker.

20. Nullity

20. (1) Where an event specified in any of paragraphs (a) to (c) occurs, a co-decision-making agreement shall, with effect from the date on which the event occurs, be null and void to the extent that the co-decision-making agreement relates to a relevant decision where there is, in respect of the relevant decision—

(a) a decision-making order or a decision-making representation order in relation to the appointer,

(b) an advance healthcare directive made by the appointer and the appointer lacks capacity, or

(c) an enduring power of attorney or enduring power under the Act of 1996 made by the appointer that has entered into force.

(2) A co-decision-making agreement shall, with effect from the date on which an event specified in any of paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the spouse of the appointer and subsequently—

(a) the marriage is annulled or dissolved either—

(i) under the law of the State, or

(ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State,

(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect,

(c) a written agreement to separate is entered into between the spouses, or

(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.

(3) A co-decision-making agreement shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the civil partner of the appointer and subsequently—

(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—

(i) under the law of the State, or

(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,

(b) a written agreement to separate is entered into between the civil partners, or

(c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.

(4) Subject to section 2(2), a co-decision-making agreement shall, at the expiry of the period referred to in this subsection, and unless it provides otherwise, be null and void where the co-decision-maker is the cohabitant of the appointer and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.

(5) To the extent that a co-decision-making agreement includes a matter referred to in section 17(4), it shall be null and void.

(6) Subject to subsection (7), where, subsequent to the registration of a co-decision-making agreement —

(a) the co-decision-maker is convicted of an offence in relation to the person or property of the appointer or the person or property of a child of the appointer,

(b) a safety or barring order is made against the co-decision-maker in relation to the appointer or a child of the appointer,

(c) the co-decision-maker becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,

(d) the co-decision-maker becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) the co-decision-maker becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act,

(f) the co-decision-maker becomes—

(i) the owner or registered provider of a designated centre or mental health facility in which the appointer resides, or

(ii) a person residing with, or an employee or agent of, such owner or registered provider, as the case may be,

unless the co-decision-maker is the spouse, civil partner, cohabitant, parent, child or sibling of the appointer,

(g) the co-decision-maker is convicted of an offence under F26[section 15A, 34,] 80, 90 or 145,

(h) the co-decision-maker—

(i) enters into a decision-making assistance agreement as a relevant person,

(ii) enters into a co-decision-making agreement as a relevant person,

F26[(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director undersection 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or]

(iv) becomes the subject of a declaration under section 37(1),

or

(i) the court finds that the co-decision-maker should no longer act as co-decision-maker for the appointer,

the co-decision-making agreement concerned shall be null and void with effect from the date on which the co-decision-maker falls within any of paragraphs (a) to (i).

(7) A co-decision-making agreement shall not be null and void pursuant to paragraphs (6)(c), (d) and (e) to the extent that it relates to relevant decisions on personal welfare.

(8) Where a co-decision-making agreement which stands registered becomes null and void in whole or to the extent that it relates to one or more relevant decisions, the co-decision-maker or, in the case of nullity pursuant to subsection (6)(h)(iii) or (iv), his or her attorney, decision-making representative or the court, as the case may be, shall notify the Director of such nullity and the particulars relating thereto.

(9) The nullity of a co-decision-making agreement or of a relevant decision contained therein shall not operate to prevent a person who relied on the agreement or the relevant decision from recovering damages in respect of any loss incurred by him or her as a result of that reliance.

21. Application for registration of co-decision-making agreement

21. (1) A co-decision-making agreement shall not enter into force until it has been registered in accordance with section 22.

(2) An application to register a co-decision-making agreement shall be made not later than 5 weeks from the date the agreement was signed, F27[in such form as shall be specified undersection 31A] and accompanied by such fee as shall be prescribed by regulations made under section 31 and, subject to section 17(6), shall be signed by both the appointer and the co-decision-maker (in this section referred to as “the applicants”).

(3) The applicants shall, at the same time as making an application to register a co-decision-making agreement under this section, jointly give notice, in such form as shall be F27[specified undersection 31A], of the application and give a copy of the co-decision-making agreement to the following persons:

(a) the spouse or civil partner (if any) of the appointer;

(b) the cohabitant (if any) of the appointer;

(c) any children of the appointer who have attained the age of 18 years;

(d) any decision-making assistant for the appointer;

(e) any decision-making representative for the appointer;

(f) any attorney for the appointer;

(g) any designated healthcare representative for the appointer;

(h) any co-decision-maker of the appointer under another co-decision-making agreement.

F28[(3A)Subsection (3)(a)shall not apply—

(a) in relation to the spouse of an appointer, where, at the time at which the application is made undersubsection (2)—

(i) a decree of judicial separation has been granted to either the appointer or his or her spouse by a court in the State or any decree has been so granted by a court outside the State and is recognised in the State as having like effect,

(ii) a written agreement to separate has been entered into between the appointer and his or her spouse, or

(iii) subject tosection 2(2), the appointer and his or her spouse have separated and have ceased to cohabit for a continuous period of 12 months,

and

(b) in relation to the civil partner of an appointer, where, at the time at which the application is made undersubsection (2)—

(i) a written agreement to separate has been entered into between the appointer and his or her civil partner, or

(ii) subject tosection 2(2), the civil partners have separated and have ceased to cohabit for a continuous period of not less than 12 months.

(3B) Subject tosection 2(2),subsection (3)(b)shall not apply in relation to the cohabitant of an appointer where, at the time at which the application is made undersubsection (2), the appointer and his or her cohabitant have separated and have ceased to cohabit for a continuous period of not less than 12 months.]

(4) An application under subsection (2) shall be accompanied by the following:

(a) the co-decision-making agreement;

(b) a statement by the appointer that he or she—

(i) understands the implications of entering into the co-decision-making agreement and has read and understands the information contained therein, or has had such information explained to him or her,

(ii) wishes to enter into the co-decision-making agreement with the co-decision-maker,

(iii) is aware that he or she may, with the consent of the co-decision-maker, vary the co-decision-making agreement, and

(iv) is aware that he or she may revoke the co-decision-making agreement;

(c) a statement by the co-decision-maker that he or she—

(i) understands the implications of entering into the co-decision-making agreement and has read and understands the information contained therein,

(ii) understands and undertakes to act in accordance with his or her functions as specified in the co-decision-making agreement,

(iii) understands and undertakes to act in accordance with the guiding principles,

(iv) understands and undertakes to comply with the reporting obligations under section 27, and

(v) understands the provisions of this Part relating to variation, revocation and nullity of co-decision-making agreements;

(d) a statement as to why the less intrusive measure of a decision-making assistance agreement was not chosen;

(e) details of any existing decision-making assistance agreement, co-decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the appointer;

(f) a statement by a registered medical F27[practitioner or] a statement by such other healthcare professional of a class as shall be prescribed by regulations made under section 31 that in F27[his or her] opinion—

(i) the appointer has capacity to make a decision to enter into the co-decision- making agreement,

(ii) the appointer requires assistance in exercising his or her decision-making in respect of the relevant decisions contained in the co-decision-making agreement, and

(iii) the appointer has capacity to make the relevant decisions specified in the co-decision-making agreement with the assistance of the co-decision-maker;

(g) references, in such form as shall be F27[specified undersection 31A], by 2 persons as to the personal character of the co-decision-maker;

(h) a copy of any notice given pursuant to subsection (3); and

(i) the appropriate fee, as prescribed by regulations under section 31.

22. Registration of co-decision-making agreement

22. (1) On receipt of an application under section 21, the Director shall review the application and any objections received under section 24 and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met:

(a) the co-decision-making agreement is in accordance with section 17;

(b) the co-decision-maker is a suitable person within the meaning of section 17(2);

(c) the co-decision-maker is eligible for appointment within the meaning of section 18;

(d) the application is in accordance with section 21 (or section 28 in the case of an application to register a varied co-decision-making agreement);

(e) the co-decision-making agreement is in accordance with the will and preferences of the appointer; and

(f) the appointer understands the implications of having entered into the co-decision-making agreement.

(2) Following the review under subsection (1) and subject to section 24, the Director shall—

(a) where he or she is of the view that the criteria set out in paragraphs (a) to (f) of subsection (1) are satisfied, register the co-decision-making agreement and notify the applicants of the date on which it was registered, or

(b) where he or she is of the view that one or more of the criteria set out in paragraphs (a) to (f) of subsection (1) are not satisfied, notify the applicants of that view, provide reasons for that view and give the applicants an opportunity, within a reasonable timeframe specified by the Director, to respond.

(3) Following a review of any response submitted by the applicants pursuant to subsection (2)(b) and subject to section 24, the Director shall—

(a) where he or she is of the view that the criteria set out in paragraphs (a) to (f) of subsection (1) are satisfied, register the co-decision-making agreement and notify the applicants of the date on which it was registered, or

(b) where he or she remains of the view that one or more of the criteria set out in paragraphs (a) to (f) of subsection (1) are not satisfied, refuse to register the co-decision-making agreement concerned and notify the applicants of that fact.

(4) One or both of the applicants whose application to register a co-decision-making agreement is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court.

(5) Upon an appeal under subsection (4), the court may—

(a) require the Director to register the co-decision-making agreement concerned,

(b) affirm the decision of the Director, or

(c) make such other order as it considers appropriate.

(6) Following the registration of a co-decision-making agreement, the Director shall send an authenticated copy of the agreement to the applicants.

(7) F29[For the purposes ofsubsection (6), a document] purporting to be a copy of a co-decision-making agreement that has been authenticated by the Director shall be evidence of the contents of the agreement and the date upon which it was registered.

F30[(8) Once the Director has registered or has refused to register under this section a co-decision-making agreement, the applicants concerned shall, as soon as practicable, give notice to the persons referred to insection 21(3)(other than those to whomsubsections (3A)and(3B)of that section relate) of that registration or refusal, as the case may be, in the form specified undersection 31A.]

23. Effect and proof of registration

23. (1) A relevant decision which is made within the scope of a registered co-decision-making agreement shall not be challenged on the grounds that the appointer did not have the capacity to make the decision.

(2) Where a co-decision-making agreement stands registered, a relevant decision made otherwise than jointly by the appointer and the co-decision-maker is null and void.

(3) (a) Subject to paragraph (b), where a relevant decision requires the signing of any document, the relevant decision is null and void unless both the appointer and the co-decision-maker sign the document.

(b) Where the appointer is unable to make his or her signature, a document may be signed on the appointer’s behalf by a person who has attained the age of 18 years and who is not the co-decision-maker if the appointer is present and directs that the document be signed on his or her behalf by that person.

24. Objections to registration

24. (1) Any of the persons referred to in section 21(3) may, not later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed registration.

(2) An objection shall be F31[in such form as shall be specified undersection 31A] and shall be accompanied by such fee as shall be prescribed by regulations made under section 31 and may be made on one or more of the following grounds:

(a) that the co-decision-making agreement was not signed or witnessed in accordance with section 17;

(b) that the appointer lacks capacity to make a decision to enter into the co-decision-making agreement;

(c) that the appointer has capacity to make the relevant decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker;

(d) that the appointer lacks capacity to make the relevant decisions which are the subject of the co-decision-making agreement even with the assistance of a co-decision-maker;

(e) that entry into the co-decision-making agreement is not in accordance with the will and preferences of the appointer;

(f) that the co-decision-maker is not a suitable person within the meaning of section 17(2) or is not eligible for appointment by virtue of section 18;

(g) that a false statement is included in the application to register the co-decision-making agreement;

(h) that fraud, coercion or undue influence was employed to induce the appointer to enter into the co-decision-making agreement.

(3) Where the Director receives an objection in accordance with subsection (2), which has been made in the period specified in subsection (1), he or she shall—

(a) review the objection,

(b) consult with the appointer and co-decision-maker and give them a reasonable opportunity to respond to the objection, and

(c) consult with such other persons as he or she considers relevant,

and shall—

(i) where he or she is of the view that the objection is not well founded, F31[notify the appointer, the co-decision-maker and the person who made the objection] of his or her view, provide reasons for that view and proceed, subject to section 22(1), to register the co-decision-making agreement concerned, or

F31[(ii) where he or she is of the view that the objection is well founded, notify the appointer, the co-decision-maker and the person who made the objection of his or her decision and refuse to register the co-decision-making agreement.]

(4) F32[…]

F31[(5) A person who has been notified undersubsection (3)of the Director’s decision may, not later than 21 days after the date of issue of the notification by the Director, appeal the decision concerned to the court.]

(6) Upon appeal under subsection (5), the court may—

F31[(a) where the Director has made a decision to whichsubsection (3)(i)refers—

(i) declare that the objection is well founded and require the Director to remove the co-decision-making agreement concerned from the Register, or

(ii) affirm the decision of the Director,

(b) where the Director has made a decision to whichsubsection (3)(ii)refers—

(i) declare that the objection is not well founded and require the Director to proceed to consider, in accordance withsection 22, whether the co-decision-making agreement should be registered, taking the court’s declaration into account, or

(ii) affirm the decision of the Director and declare that the co-decision-making agreement should not be registered,

or]

(c) make such other declaration or order as it considers appropriate.

25. Register of co-decision-making agreements

25. (1) The Director shall establish and maintain a Register (in this Part referred to as “the Register”) of co-decision-making agreements.

(2) The Register shall be in such form as the Director considers appropriate.

(3) F33[The Director shall make such details of the Register as he or she shall specify] available for inspection by—

(a) a body or class of persons prescribed by regulations made under section 31 for this purpose, and

(b) any person who satisfies the Director that he or she has a legitimate interest in F33[inspecting those details of the Register].

(4) The Director may issue an authenticated copy of a co-decision-making agreement, F33[or part thereof, or, where applicable, a varied co-decision-making agreement or part thereof], on the Register on payment of the prescribed fee to—

(a) a body or class of persons prescribed by regulations made under section 31 for this purpose, and

(b) a person who satisfies the Director that he or she has a legitimate interest in obtaining a copy.

F34[(4A) An authenticated copy of a co-decision-making agreement or part thereof, or, where applicable, of a varied co-decision-making agreement or part thereof, that is issued by the Director undersubsection (4)and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the agreement or part thereof as at the date and time indicated on the stamp.]

(5) The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy of a co-decision-making agreement, F33[or part thereof, or, where applicable, a varied co-decision-making agreement or part thereof,] from him or her.

26. Review of co-decision-making agreements

26. (1) The Director shall conduct a review of each co-decision-making agreement on the Register not earlier than 3 months before and not later than 3 months after the first anniversary of the date of registration of the agreement and thereafter at intervals not exceeding 3 years.

(2) In conducting a review under this section, the Director shall carry out such reasonable enquiries, including, in particular, consulting with the appointer and co-decision-maker as well as any special visitor or general visitor who has had contact with the appointer or co-decision-maker, as he or she considers necessary to determine whether the following criteria are met:

(a) paragraphs (e) and (f) of section 22(1) continue to apply;

(b) the co-decision-making agreement does not fall within section 20 ;

(c) the co-decision-maker has performed and continues to be likely to perform his or her functions as co-decision-maker;

(d) the co-decision-maker has complied with the requirements under this Act that are relevant to him or her;

(e) the matters provided for in subparagraphs (ii) and (iii) of section 21(4)(f) continue to apply.

(3) In order to determine whether the matters provided for in subparagraphs (ii) and (iii) of section 21(4)(f) continue to apply, the Director shall require F35[a statement] to that effect to be submitted to him or her by—

(a) the same registered medical practitioner who provided the original statement under section 21(4)(f) or, where that practitioner is not reasonably available, another registered medical F35[practitioner, or]

(b) the same healthcare professional who provided the original statement under section 21(4)(f) or, where that professional is not reasonably available, another healthcare professional of the class prescribed by regulations made under section 31.

(4) Where, following a review under subsection (1), the Director is of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection (2) does not apply, he or she shall notify the co-decision-maker and the appointer of that view, provide reasons for same and give the appointer and the co-decision-maker an opportunity to respond within a time period specified by the Director.

(5) Where, at the expiry of the period for response specified under subsection (4) and following a review of any response submitted by the appointer or the co-decision-maker or both pursuant to that subsection, the Director remains of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection (2) does not apply, he or she shall notify the appointer and the co-decision-maker of that view and make an application to the court for a determination on the matter.

(6) Where, pursuant to an application to it under subsection (5), the court determines that one or more of the criteria in paragraphs (a) to (e) of subsection (2) does not apply, it may determine that the co-decision-maker shall no longer act as co-decision-maker for the appointer concerned.

27. Reports by co-decision-maker

27. (1) A co-decision-maker shall, within 12 months after registration of the co-decision-making agreement appointing him or her, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such co-decision-maker during the relevant period.

(2) Every report submitted to the Director pursuant to this section shall be approved by the appointer and shall be in such form as shall be F36[specified undersection 31A] and shall include details of all transactions relating to the appointer’s finances which are within the scope of the co-decision-making agreement and details of all costs and expenses paid to and claimed by the co-decision-maker in the relevant period together with such other matters F36[as are specified undersection 31A].

(3) Where a co-decision-maker fails to submit a report in accordance with this section or submits an incomplete report, the Director shall notify the appointer and the co-decision-maker concerned of that failure or incompleteness and give the co-decision-maker such period of time as is specified in the notification to comply or submit a complete report.

F36[(4) Where a co-decision-maker fails to comply with a notification undersubsection (3), the Director—

(a) may, in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and specifications made undersection 31A, accept the report as if it were in compliance with this section and the relevant specifications,

(b) may make such further directions with regard to the submission of the report in question as he or she considers appropriate, or

(c) may, subject tosubsection (4A)and following consultation with the appointer and the co-decision-maker, make a determination that the co-decision-maker shall, as soon as may be or from a date specified by the Director, no longer act as co-decision-maker for the appointer concerned.]

F37[(4A) Where the Director has made a determination undersubsection (4)(c)he or she shall notify the appointer and the co-decision-maker of his or her determination, provide reasons for that determination and update the Register accordingly.

(4B) An appointer or a co-decision-maker who has been notified undersubsection (4A)of the Director’s determination may, not later than 21 days after the date of issue of the notification by the Director, appeal the determination concerned to the court.]

F36[(5) Pursuant to an appeal to it undersubsection (4B), the court may—

(a) affirm the determination of the Director,

(b) declare that the co-decision-maker shall continue to act as such for the appointer concerned and require the Director to update the Register accordingly, or

(c) make such other declaration or order as it considers appropriate.]

(6) In this section “relevant period” means the period of time to which the report relates which shall be the period of time between the date of registration of the co-decision-making agreement or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned.

28. Variation of co-decision-making agreement

28. (1) The terms of a registered co-decision-making agreement may be varied by agreement between the appointer and the co-decision-maker.

(2) Subject to section 17(6), a varied co-decision-making agreement shall include the signature of the appointer and the co-decision-maker (in this section referred to as “the applicants”) and shall be witnessed in accordance with section 17(7).

(3) An application to register a varied co-decision-making agreement shall be made F38[in such form as shall be specified undersection 31A] and accompanied by such fee as shall be prescribed by regulations made under section 31 and, subject to section 17(6), shall be signed by both the appointer and the co-decision-maker.

(4) The applicants shall, at the same time as making an application to register a varied co-decision-making agreement, give notice, in such form as shall be F38[specified undersection 31A], to the persons specified in section 21(3) and the application shall be accompanied by the following:

(a) the varied co-decision-making agreement;

(b) a statement by the applicants outlining the variation and why it is considered necessary;

(c) a statement by a registered medical F38[practitioner or] a statement by such other healthcare professional as shall be prescribed by regulations made under section 31 that in his or her opinion—

(i) the appointer has capacity to vary the co-decision-making agreement,

(ii) the appointer requires assistance in exercising his or her decision-making in respect of the relevant decisions contained in the varied co-decision-making agreement, and

(iii) the appointer has capacity to make the decision or decisions specified in the varied co-decision-making agreement with the assistance of the co-decision-maker concerned;

(d) details of the notice given pursuant to this subsection;

(e) any change to the information provided pursuant to section 21(4)(e) in the application to register the co-decision-making agreement;

(f) the appropriate fee, as prescribed by regulations made under section 31.

(5) Sections 22 to 27 and sections 29 to 34 shall apply to a varied co-decision-making agreement as they apply to a co-decision-making agreement with the modification that a reference to “co-decision-making agreement” in those sections shall be read as if “varied co-decision-making agreement” were substituted for “co-decision-making agreement” and any other necessary modifications.

(6) An application to register a varied co-decision-making agreement may not be made less than 6 months from the date of registration of the co-decision-making agreement which it varies, and thereafter at intervals of not less than 12 months, unless a shorter period is agreed by the Director.

(7) Upon registration of a varied co-decision-making agreement, the Director shall remove from the Register the co-decision-making agreement which the varied co- decision-making agreement replaces.

(8) A varied co-decision-making agreement shall not enter into force until it has been registered.

29. Revocation of co-decision-making agreement and removal from Register

29. (1) A co-decision-making agreement, whether registered or not, may be revoked in whole or in part at any time by the appointer or the co-decision-maker, or both.

(2) A revocation or revocation in part of a co-decision-making agreement shall be in writing and shall be in such form as shall be F39[specified undersection 31A].

(3) Subject to section 17(6), a revocation or a revocation in part of a co-decision-making agreement shall be signed by the person or persons making the revocation F39[and each such signature] shall be acknowledged by 2 witnesses and section 17(7) shall apply with the necessary modifications.

(4) Where a revocation or revocation in part is made after the co-decision-making agreement concerned has been registered, the person making the revocation shall notify the Director of the revocation or revocation in part, F39[as the case may be, and the notification, which shall be in such form as shall be specified undersection 31A, shall be accompanied by the following:

(a) a statement in writing by the person making the revocation outlining his or her reasons for the revocation;

(b) if the appointer is the person making the revocation, a statement by a registered medical practitioner or a statement by such other healthcare professional as shall be prescribed by regulations made undersection 31that in his or her opinion, the appointer has capacity to revoke the co-decision-making agreement;

(c) details of the notice given pursuant tosubsection (4A);

(d) information on any change in the details provided pursuant tosection 21(4)(e)in the application to register the co-decision-making agreement;

(e) the appropriate fee, as prescribed by regulations made undersection 31.]

F40[(4A) The person making the revocation or revocation in part of a registered co-decision-making agreement shall, at the same time as notifying the Director undersubsection (4), give notice of the revocation or revocation in part, in such form as shall be specified undersection 31A, to the persons specified insection 21(3).]

(5) Upon receipt of a notification under subsection (4) the Director shall—

(a) where the revocation concerns the whole of the co-decision-making agreement concerned, remove the co-decision-making agreement to which the revocation relates from the Register, and

(b) where the revocation is a revocation in part, identify on the Register the F39[extent of the revocation.]

F41[…]

(6) In this section a “revocation in part” means a revocation (whether by the co-decision-maker or the appointer or both), whereby the co-decision-maker continues to act as co-decision-maker for the appointer in respect of one or more relevant decisions which are the subject of the co-decision-making agreement.

30. Complaints in relation to co-decision-makers

30. (1) A person may make a complaint in writing to the Director concerning one or more of the following matters:

(a) that the co-decision-maker has acted, is acting, or is proposing to act outside F42[the scope of, or in breach of,] his or her functions under the co-decision-making F42[agreement, or in breach of this Act];

(b) the suitability of a co-decision-maker in relation to an appointer;

(c) a co-decision-making agreement not being in accordance with the will and preferences of an appointer;

(d) that an appointer did not, at the time of entry into the co-decision-making agreement, have capacity to make a decision to enter into the agreement;

(e) that fraud, coercion or undue pressure was used to induce an appointer F42[to enter into, or to vary or revoke,] the co-decision-making agreement;

(f) that an appointer has capacity in respect of one or more of the decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker;

(g) that an appointer no longer has capacity in respect of one or more than one of the decisions which are the subject of the co-decision-making agreement even with the assistance of the co-decision-maker.

F43[(1A) Following the receipt of a complaint undersubsection (1)the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject tosubsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the "initial investigation period").

(1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.]

(2) F42[The Director shall, as soon as is practicable after having formed a view undersubsection (1A)]—

(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to any matter specified in the F42[complaint,]

F43[(aa) notwithstandingparagraph (a), where he or she is of the view that the complaint is well founded and that—

(i) the provision of clarification by him or her to the co-decision-maker regarding the role of the co-decision-maker would be an appropriate resolution, or

(ii) the subject matter of the complaint could be appropriately resolved undersection 96(4),