Frequently Asked Questions

The DSS is a statutory public service established within the Mental Health Commission by the
Assisted Decision-Making (Capacity) Act 2015. The main role of the DSS is to provide information and
guidance about the new support framework and to register and supervise decision support
arrangements.

Any adult who needs support to exercise their decision-making capacity might need to interact with
the DSS. This may include, but is not limited to, people with an intellectual disability, mental illness,
dementia or acquired brain injury. The DSS can supply information in relation to the new regulated
arrangements, which they may access to support their decision-making in relation to their personal
welfare and/or property and affairs.
The DSS can also provide services to any person who wants to engage in advance planning by way of
an advance healthcare directive or enduring power of attorney.

Any adult who needs support to exercise their decision-making capacity might need to interact with
the DSS. This may include, but is not limited to, people with an intellectual disability, mental illness,
dementia or acquired brain injury. The DSS can supply information in relation to the new regulated
arrangements, which they may access to support their decision-making in relation to their personal
welfare and/or property and affairs.
The DSS can also provide services to any person who wants to engage in advance planning by way of
an advance healthcare directive or enduring power of attorney.

People can set up their own account with MyDSS. You can access and log in to the portal at MyDSS
Login.
The DSS can provide information and guidance to help people if or when they are using its online
services. The DSS also has an information services team who can help users if they have any
difficulties or questions.
The DSS understands that using its online service may not work for everyone. They do, therefore,
have paper options available for people who require them.

There are five different decision support arrangements available. These arrangements are based on
the different levels of support that a person may require to make a specific decision at a specific
time.
There are three tiers of decision support available for people who currently, or may shortly, face
challenges when making certain decisions. These are:
• Decision-making assistance agreement: the person makes their own decision with support
from their decision-making assistant. Their decision-making assistant helps them to access and
to understand information and to communicate their decision.

• Co-decision-making agreement: the person makes specified decisions jointly with a co-
decision-maker as set out in a registered agreement.

• Decision-making representation order: the court appoints a decision-making representative to
make certain decisions on the person’s behalf.
There are two types of decision support arrangement for people who wish to plan for a time in the
future when they might lose capacity. This includes an advance healthcare directive and an
enduring power of attorney.

This is the uppermost tier of support. A decision-making representative could be appointed by the
Circuit Court as an outcome of a new application under the Act or by the wardship court when it
discharges a current ward of court. A decision-making representative’s role is to make certain
decisions on behalf of a person if they are unable to make those decisions for themselves. They will
be appointed by the court in an order called a decision-making representation order.

The court order will list all the decisions that the decision-making representative can make. This may
include decisions about the person’s personal welfare and property and affairs. A decision-making
representative can only make decisions that are included in the order.

The court may decide to appoint more than one decision-making representative to make decisions
on behalf of a person. If the court appoints more than one decision-making representative in a
decision-making representation order, it will say whether they:
• must make the decisions in the order together
• can make the decisions together or separately
• must make some decisions together but can make other decisions together or separately.

To be a decision-making representative, a person must be 18 years and over and, ideally, would be
known and trusted by relevant person.

However, if the relevant person does not have anyone available and suitable to act as their decision-
making representative, the court will ask the DSS to nominate someone from its panel of decision-
making representatives. It should be noted that a decision-making representative can only be

assigned to the relevant person by a court order and the decision-making representative’s authority
is limited to what is set out in the court order.
A decision-making representative reports to the DSS and is supervised by the DSS.

This is the middle tier of support. To be a co-decision-maker, a person must be 18 years and over
and must be known and trusted by the relevant person.
A co-decision-maker reports to the DSS and is supervised by the DSS.

This is the lowest tier of support. To be a decision-making assistant, a person must be 18 years and
over and must be known and trusted by the relevant person.

There will be a fee to register a co-decision-making agreement and an enduring power of attorney.
The Department of Children, Equality, Disability, Integration and Youth havel set these fees. Some
people may not have to pay a fee. This will depend on their individual circumstances, including their
income or certain benefits they receive. You can learn all about the fees and waivers on our website.

There will also be costs relating to an application to court to make a decision-making representation
order. Some people may be able to get legal aid to do so, including legal representation. A scheme
of legal aid has been established. For more information, please see here.

No, they won’t need a lawyer to make a decision support arrangement. Detailed information on how
to make a decision support arrangement is available on the DSS website. However, if people wish to
make an Enduring Power of Attorney under the new law, they will need a statement from a lawyer
to confirm that they understand the arrangement.

A capacity assessment looks at a person’s ability to make a decision for themselves. The assessment
used under the Act is called a ‘Functional Test’ for capacity. This is not a medical assessment. The
functional assessment contrasts with the ‘person of unsound mind’ approach that applies in
wardship. The functional assessment is about a specific decision that needs to be made at a specific
time.
Applying the functional test, a person can be said to lack capacity to make a particular decision if
they are unable to do one of the following:
• Understand information relevant to the decision
• Retain that information long enough to make a voluntary choice
• Use or weigh up that information as part of the process of making the decision
• Communicate their decision in whatever way they communicate (not only verbally)

Under the new law, everyone is presumed to have capacity at all times. The first step is to support
people to make their own decisions. In some circumstances, if such supports have not succeeded,
there may be a reason to question a person’s capacity to make a certain decision. The person
who requires the decision to be made will often be the best person to do the capacity assessment.
This could be, for example, a lawyer, a doctor, or a person providing financial services. Anyone
assessing capacity should regard it as part of the process towards identifying and helping the person
to access appropriate supports.
Under the new law, there are also limited circumstances where the capacity assessment must be
undertaken by medical practitioners or other healthcare professionals. This is during the processes
relating to a co-decision-making agreement and an enduring power of attorney.
Link to YouTube Explainer Video on how capacity will be assessed

For the following types of decision support arrangements, the person who may require support
decides whether or not to make an arrangement:
• Decision-making assistance agreement
• Co-decision-making agreement
• Enduring power of attorney
• Advance healthcare directive
They must also choose whom they wish to appoint as their decision supporter. A family carer cannot
make a decision support arrangement for the person, or on their behalf. The DSS will provide
information for family members and carers who wish to help a person to make a decision support
arrangement. A family member will often be the best person to become a decision supporter.
At the upper level and as a last resort, if someone believes that a person is unable to make certain
decisions for themselves, they can ask the court to make a declaration about the person’s capacity
and to make a decision-making representation order. The court will decide whether to appoint a
decision-making representative for the person and who will act in this role.

The DSS’s complaints and investigation function is limited to decision supporters and decision
support arrangements.
The DSS does not have a regulatory role in relation to external organisation or professionals. If the
Director of the DSS receives a complaint that an organisation had failed/refused to engage properly
with an appointed decision supporter, the DSS may contact the organisation to discuss the matter
and, if necessary, explain the provisions of the 2015 Act. Under the 2015 Act, the Director is required
to provide information and guidance to organisations and bodies in the State in relation to their
interaction with relevant persons and the various tiers of decision supporters. The Director may also
identify and make recommendations for change of practices in organisations and bodies in which the
practices may prevent a relevant person from exercising his or her capacity under the Act.
Depending on the response of the organisation, it would be open to the DSS or the complainant to
notify the appropriate regulatory body. In the usual way, the regulatory body would be required to
examine the complaint and take appropriate action. It is also worth noting the relevance of the DSS
codes of practice in this context. Where it appears to a court, tribunal or body conducting any proceedings that a DSS code/breach of a code is relevant, it shall take that into account.

If a person wishes to plan ahead, they can make an advance healthcare directive. This lets them set
out their wishes regarding treatment decisions in case they are unable to make these decisions in
the future. Importantly, it lets the person write down any treatment that they do not want.
Under the new law, a person will be able to appoint someone they know and trust as their
designated healthcare representative to ensure their advance healthcare directive is followed. The
designated healthcare representative may give or refuse consent to treatment as set out in the
advance healthcare directive.

Advance healthcare directives can be cancelled at any time if the relevant person has capacity to do
so. The advance healthcare directive can also be changed. The advance healthcare directive will only
start to apply if the relevant person loses their capacity. It can be a good idea for the person to
review and update the advance healthcare directive on a regular basis to ensure that it reflects the
person’s wishes. They should also review and update it following any major medical treatment or
diagnoses to ensure it reflects their medical situation.

If a person has already made an Enduring Power of Attorney (EPA) under the Powers of Attorney Act
1996, then they can keep that arrangement and it will continue to be valid. The only change is that
the DSS will be able to investigate complaints about an attorney under the 1996 Act. For more
information on this please see here.
If a person now wishes to make an EPA, the 2015 Act will apply. The most important difference is
that an attorney under the 2015 Act comes under the supervision of the DSS.

Now that the new law has been commenced, there will be no new applications for wardship.
If an application for wardship has been initiated, the application may continue to final orders.
However, the intended ward will also have access to the alternative supports under the 2015 Act,
and if these supports are put in place, the wardship application will be withdrawn.
Any ward of court, or someone acting on their behalf, can apply to the wardship court to have their case reviewed.

www.decisionsupportservice.ie

Contact details

Waterloo Exchange, Waterloo Road
Dublin 4
Phone: +353 (01) 211 9750
Eircode: D04 E5W7

Email: queries@decisionsupportservice.ie

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