Literature Review on Provision of Appropriate and Accessible ...

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persons who lack decision-making capacity. [19] Where a person is
considered incapable of managing his/her affairs, an application can
be made to the High Court to make that person a ward of court. The
Supreme Court has pointed out that the impact of being made a ward of
court is monumental. [20]
Support to People with an Intellectual Disability who are
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Experiencing Crisis Pregnancy
2.4.2 Legislative reform in Ireland –
Scheme of Mental Capacity Bill 2008
New legislation has been proposed, which aims to reform the law
concerning capacity, in so far as it applies to adults, and to introduce
a modern framework governing decision-making on behalf of persons
who lack capacity. This legislation is the Scheme of Mental Capacity
Bill 2008. [21] Another Bill covering legislation in this area, a Private
Members’ Bill entitled Mental Capacity and Guardianship Bill 2008
(hereafter referred to as ‘The Private Members’ Bill’), was introduced in
the Senate in February 2008. [22]
19 An enduring power of Attorney is a legal mechanism established by the Powers
of Attorney Act 1996 for granting certain decision-making power to a nominated
attorney in the event that the person loses capacity.
20 When a person is made a Ward of Court, the Court is vested with jurisdiction over
all matters relating to the personal estate of the ward (Re A Ward of Court (No
2) (1996) 2IR 79). The result of this is that a person who has been made a Ward
of Court loses the right to make any decisions about their person and property.
Although the court will have regard to the views of the ward’s committee (in effect
guardian) and family members, the Court will make conditions based on the
criterion of the ‘best interests’ of the ward but generally no attempt is made to
consult the ward in relation to the decision.
21 Proposals for the drafting of the Scheme of Mental Capacity Bill 2008 were
approved by Government on 3 September 2008. Publication of the Bill was
expected in the Spring of 2009; however, it seems likely that this will not occur
until some time in 2010. The Scheme of Mental Capacity Bill 2008 is based on
the Law Reform Commission’s recommendations in this area as set out in their
report, Vulnerable Adults and the Law (LRC, 2006). This report - LRC 83-2006
- contains a Draft Scheme of Mental Capacity and Guardianship Bill (hereafter
referred to as the Law Reform Commission Bill), which is quite similar to but not
identical to the scheme of the Mental Capacity Bill 2008.
22 A previous Private Members’ Bill entitled the Mental Capacity and Guardianship
Bill 2007 (Bill no. 12 of 2007) had been introduced in the Senate, but fell with the
dissolution of the Oireachtas.