Capacity Legislation Becoming a Reality

23 December 2022


It is hard to believe that after so many false starts that the 2015 capacity legislation is soon becoming a reality. The Assisted Decision-Making (Capacity) (Amendment) Act 2022 will soon be sent to the President for signature. [*Editior’s revision – see below] The 2022 Bill completed its Report Stage in Seanad Éireann on the 29th of November 2022 and thereafter the full set of Seanad Éireann amendments was passed to the Dáil. These amendments were debated and approved by Dáil Éireann on the 14th of December 2022. Thus completing the full rounding out of the 2015 Capacity Act. A full version of the 2022 Act as passed by both houses of the Oireachtas has yet to be published (as of the time of writing 23 December 2022). The 2022 Act contains a wide arrange of amendments that were part of previous blogs in this series. More particularly now there are clear transition provisions regarding the appointment of care representatives under the Nursing Home Support Scheme Act 2009. Applications under the 2009 Act for care representatives can continue right up to the commencement of the new capacity regime and applications in train will continue to be processed. Similarly with respect to wardship applications.

We will be looking in more detail in later blogs on the 2015 Capacity Act as amended, but I think it is fitting to leave the final word to Roderic O’Gorman, Minister for Children, Equality, Disability, Integration and Youth of Ireland:-

Can I make a commitment that this piece of legislation will solve everything? No, I cannot. However, I do think it is a much clearer system with much greater checks and balances. There will be a much higher degree of regulation. I am hopeful but, more than that, I strongly believe that this new system will provide much greater protection to people whose capacity is reduced and who must rely on others in supporting their decision-making abilities.

If you have any queries on probate, capacity, will drafting or tax issues, do not hesitate to make contact with me through the solicitor query service on the probate hub.

As this is the final blog of the year, I wish to take this opportunity to wish you, your families, friends, work colleagues and cilents a happy and peaceful holiday season and 2023.

Colm Kelly

* Editor’s Note. In fact at that stage the Act had been signed by the President on the 17th of December, but that information had not been uploaded to the Bills website at the time of writing, namely 23 December 2022 .