A BILL that was due to be published in April to help protect adults, including older people, who suffer impaired decision-making capacity, will not be published until the end of the year at the earliest, the Department of Justice has said.
But older people’s charity Age Action Ireland has said the Mental Capacity Bill 2008 needs to be implemented urgently.
Current laws that protect adults who, due to dementia, accident or intellectual disability, are unable to make decisions for themselves or exercise their legal capacity, are contained in the 1871 Lunacy Regulations Ireland Act.
The Department of Justice has said this Act is outdated, inappropriate and in need of urgent reform.
Minister for Justice Dermot Ahern announced details of the new legislation in February and said it would be published by Easter. But the Department has now said it hopes to publish the Bill by the end of the year, “if possible”.
A new Office of Public Guardian is to be established under the legislation. The primary role of the office would be to supervise and monitor the duties of court-appointed personal guardians, replacing the ward of court system. The office would also prepare codes of practice on a range of matters including codes for financial institutions to help safeguard older people against financial abuse.
The legislation would presume that a person had capacity and the person would not be treated as unable to make a decision unless all practicable steps to help that person make a decision had been taken without success.
Capacity would be understood in terms of a person’s ability to make a specific decision at a specific time, and would allow for the possibility that the loss of capacity could be temporary or permanent and that other decisions could still be made.
Under the Lunacy Act, a person is made a ward of the court and is unable to make decisions on a wide range of issues.
The Bill would also unify these measures with legislation on enduring powers of attorney, where a person can pass decision-making powers to another person while they are still alive in the knowledge that their deteriorating health would impair their decision-making capacity in the future.
It also provides for an offence of ill-treatment or neglect by the person appointed as attorney or personal guardian.
Law Reform Commissioner Patricia Rickard-Clarke said it was important to minimise the abuse of older people and the new legislation would strengthen their position. “It is a great improvement in its functional approach towards capacity,” she said. “It is no longer all or nothing.”
A spokesman for Age Action Ireland said the Bill needed to be implemented urgently to protect the vulnerable, regardless of their age.
“We are working with legislation from 1871,” the spokesman said. “This is about modernising legislation to promote people’s welfare.”
