Assisted Decision- Making Capacity Legislation

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Our Private Wealth Group provides focused legal and tax advisory services to domestic and international individuals and families, family offices, trustees, beneficiaries, private banks, and trust companies on a wide range of private wealth matters.

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Our dedicated team comprises over ten professionals and is led by the Head of Private Wealth, John Gill

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Experience Highlights

Matheson’s Private Wealth lawyers provide tax, estate planning and wealth preservation / asset protection advice to Irish and International individuals, families and their investment advisors. Experienced members of our team are also qualified tax advisors.

Highlights of our recent work include:

Advising Irish resident and domiciled clients on parent controlled gifting structures to take advantage of reduced asset values in large Irish businesses.
Advising high net worth Irish domiciled, UK and US resident individuals on their estate plans involving assets in multiple jurisdictions.
Advising individuals moving to Ireland on pre-entry planning to mitigate exposure to Irish capital tax, immigration issues and property advices as part of our dedicated relocation service.
Advising clients and offshore structures in negotiations with the Irish Revenue Commissioners and on making appeals to the Tax Appeals Commission.
Advising financial institutions on the practical implantation of the Assisted Decision Making (Capacity) Act 2015.
Advising Irish and international families and family law offices on the full range of domestic and international estate planning concerns.
Advising family businesses on passing future value in the business to the next generation whilst maintaining business control.
Advising Irish trustees providing trust service to non-Irish families.
Advising on the Irish tax implications of offshore trust structures, including minimising Irish tax exposures through voluntary disclosure.
Advising on the legal and tax aspects of a trust dispute on behalf of a branch of a family concerning a valuable business.
Advising claimant child and spouse beneficiaries of large Irish and international estates.
Advising on multiple will challenges both for executors and plaintiff beneficiaries.
Advising on succession law issues involving estates with complex tax profiles and assets in multiple jurisdictions.

Accolades

John Gill and Paraic Madigan continue to be listed as tier one lawyers.
Chambers High Net Worth Guide 2024

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Chambers High Net Worth Guide 2024

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Chambers High Net Worth Guide 2024.

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Chambers High Net Worth Guide 2024.

John Gill is listed in Private Client Global Elite.
Private Client Global Elite 2019 - 2022

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Chambers High Net Worth Guide 2021

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Chambers High Net Worth Guide 2019

Paraic provides "high-quality professional advice, perfect for the needs of the HNW individual."
Chambers High Net Worth Guide 2019

Paraic Madigan and John Gill are listed in the Citywealth Leaders List
Citywealth Leaders List 2017 - 2019

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Paraic Madigan is recognised for Trusts and Estates
Best Lawyers Ireland 2018 edition

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Chambers High Net Worth Guide 2018

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Chambers High Net Worth Guide 2018

"Paraic Madigan is a well-regarded private client practitioner."
Chambers High Net Worth Guide 2018

Paraic Madigan is recognised as a leading lawyer by Best Lawyers.

"An excellent legal partner, they look at every assignment from the client's perspective."
International Law Office, Client Choice Award — Ireland

Private Wealth Brochures

Matheson Private Wealth: Family Business PDF | 6.00 MB Matheson Private Wealth: Offshore Trustees Be Mindful of the Irish Connection PDF | 1.00 MB Matheson Private Wealth: Private Wealth and Family Office PDF | 1.00 MB Matheson Private Wealth: Routes to Irish Citizenship PDF | 1.00 MB Matheson Private Wealth: Tax and Estate Planning for US Citizens PDF | 1.00 MB

Assisted Decision-Making Capacity Legislation: A Financial Service Provider's Perspective

Oct 31, 2023, 17:14 PM

Title : Assisted Decision-Making Capacity Legislation: A Financial Service Provider's Perspective

Filter services i ds : 456571a5-3753-45e9-9c06-245efa7c0573;

Engagement Time : 5

Insight Type : Article

Insight Date : Oct 31, 2023, 00:00 AM

In this, Matheson's final Knowledge Insights Series event for the first half of 2023, John Gill, partner and head of Matheson's Private Client group, Ian O' Mara, partner (Financial Institutions Group) and Maeve Lochrie, senior associate (Private Client), discussed the key aspects of the Assisted Decision-Making (Capacity) Act and its recent amendment. The webinar was moderated by professional support lawyer, Claire Scannell (Financial Institutions Group).

Overview of the Assisted Decision-Making Capacity Act 2015 and the Assisted Decision-Making (Capacity) (Amendment) Act 2022

We wrote about the Assisted Decision-Making (Capacity) Act 2015 ("the 2015 Act") previously here . This Act was amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022 ("the 2022 Act") and both Acts were fully commenced on 26 April 2023. The legislation replaces the wards of court system with a new, progressive, rights-based system of supported decision-making, including specific key measures related to further compliance with the United Nations Convention on the Rights of Persons with Disabilities. This new legal architecture is underpinned by the Decision Support Service, which oversees and supports decision support arrangements. The Decision Support Service published 13 codes of practice for decision supporters, interveners and relevant professionals, providing guidance for their functions and responsibilities under the amended legislation. One of these codes is for financial service professionals while another larger code on supporting decision-making and assessing capacity is designed to provide general assistance to those interacting with the relevant person.

The legislation operates around a number of core fundamental principles. First, a relevant person is assumed to have the capacity to make their own decisions. This represents a shift away from the previous paternalistic diagnosis–led understanding of capacity, towards a model which is concerned with specific decisions based on time and import.

Further, there is a move away from the best interests test to a test that gives respect to the will and preference of the individual concerned. It is the responsibility of a person who interacts with a relevant person to take all practical steps to assist and help that person when their capacity to make a decision is in question.

Finally, before carrying out a functional test for capacity as provided for in section 3 of the Act, all available support that would make it easier for the relevant person to make a decision should be offered. This is the first time that legislation provides for a formal statutory test in relation to capacity.

A person's capacity to make a decision should only be assessed after all the relevant supports have been provided. There are nine guiding principles set out in section 8 of the Act, as well as the supporting codes. These are aimed at those who interact with relevant persons, typically healthcare professionals, but also financial service providers. Regard must be had as to when the decision must be made, the complexity of the decision and environmental factors.

Key Takeaways for Financial Service Providers

Make informal assessments against the functional test on an ongoing basis using the codes.
Have appropriate systems in place to deal with these cases. It is also advisable to create awareness around customer-facing staff in relation to identifying and dealing with capacity issues by supporting the decision-making process.
Currently there is no guidance or case-law on how the Act will be implemented but it is advisable to document all key stages.