Assisted Decision-Making (Capacity) (Amendment) Act 2022

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Insertion of new sections 96A and 96B into Principal Act

81. The Principal Act is amended by the insertion of the following sections after section 96:

“Temporary prohibition order

96A.(1) Where the Director considers, while he or she is conducting an investigation under section 15, 30, 47 or 76, as the case may be, that an immediate prohibition of a decision-making assistant, co-decision‑maker, decision-making representative or attorney for a relevant person from acting as such is necessary because of an immediate risk of harm to the relevant person or the property of the relevant person, he or she may make an application to the court for a temporary prohibition order under subsection (3) pending the resolution, by the Director or the court, as the case may be, of his or her investigation.

(2) Where an application under subsection (1) for an order is made ex parte, it shall be grounded on an affidavit sworn by the Director or by a person to whom that function is delegated under section 98(2).

(3) The court may, on an application under subsection (1), make an order (in this section referred to as a ‘temporary prohibition order’) prohibiting the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned from acting as such for the relevant person concerned for a period of time, or until the occurrence of an event, specified in the order where, having regard to the circumstances of the case, the court considers it necessary to do so for the protection of the relevant person or the property of the relevant person.

(4) An order under this section—

(a) may be made ex parte where, having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so in the interests of justice, and

(b) where it is made ex parte shall be for such period, not exceeding 14 working days, as is specified in the order unless on application by the Director and on notice to the relevant person concerned and the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned, as the case may be, the temporary prohibition order is confirmed within that period by order of the court.

(5) Where a temporary prohibition order is made, the Director shall, as soon as is practicable, serve a copy of the order and of the affidavit referred to in subsection (2) on the relevant person concerned, the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned and on any other persons identified by the Director and approved by the court.

(6) A temporary prohibition order—

(a) shall take effect from the date of the service of a copy of the order referred to in subsection (5) on the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned,

(b) subject to subsection (4), shall have effect for the period specified in the order, or on the occurrence of an event to which section 15, 30, 47 or 76, as the case may be, refers, and specified by the court in the order, and

(c) subject to subsection (4), may contain such further directions or conditions as the court considers appropriate, including regarding the variation, renewal or discharge of the order.

(7) During the period that a temporary prohibition order is in effect—

(a) where the order is in relation to a decision-making assistant, the relevant person may appoint another decision-making assistant for that period or otherwise,

(b) where the order is in relation to a co-decision-maker, the relevant person may appoint another co-decision-maker for that period or otherwise,

(c) where the order is in relation to a decision-making representative, any relevant decisions that are required to be made during that period may be made by order of the court or, notwithstanding section 38(1), by a decision-making representative appointed by the court by order under section 38(2)(b) on behalf of the relevant person, or

(d) where the order is in relation to an attorney and there is no other attorney appointed by the donor under the enduring power of attorney who may make any relevant decisions that are required to be made during that period, any such relevant decisions may be made by order of the court or, notwithstanding section 38(1), by a decision-making representative appointed by the court by order under section 38(2)(b) on behalf of the relevant person.

(8) An application under subsection (1) shall be heard otherwise than in public unless the court considers it appropriate to hear the application in public.

(9) A notice document that is required to be served on a person under this section shall be addressed to the person concerned by name and shall be served on the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter or by any other form of recorded delivery service to the address referred to in paragraph (b); or

(d) by electronic means, in a case in which the person has given notice in writing to the person serving the document concerned of his or her consent to the document (or documents of a class to which the document belongs) being served on him or her in that manner.

(10) For the purposes of this section, a company within the meaning of the Companies Act 2014 is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

Power of Director to specify form of signature

96B. The Director may specify the form of signature (including a signature in electronic format) of any person, including signatories and witnesses, to an agreement, instrument, directive or other document under this Act, including a decision-making assistance agreement, a co-decision-making agreement, an instrument creating an enduring power of attorney, an advance healthcare directive or any document specified by the Director, or prescribed by the Minister by regulations, under this Act.”.