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

Amendment of Nursing Homes Support Scheme Act 2009

102. The Nursing Homes Support Scheme Act 2009 is amended—

(a) in section 21, by the insertion of the following subsection after subsection (43):

“(44) Section 46A shall apply to and in relation to care representatives and relevant persons referred to in this section as it applies to specified persons and ‘other persons’ referred to in that section.”,

(b) by the insertion of the following section after section 21:

“Transitional provisions regarding care representatives

21A. (1) On and after the date of the coming into operation of section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 (in this section referred to as the ‘relevant date’), a person may not apply to the court under section 21(4)(a) for an order appointing him or her to be a care representative.

(2) Where—

(a) a care representative was appointed in respect of a person, and

(b) on or after the relevant date a decision-making representative is appointed under the Assisted Decision-Making (Capacity) Act 2015 (in this section referred to as the ‘Act of 2015’) in respect of the person and in respect of a matter to which section 21 applies that is also specified in the order appointing the care representative,

then—

(i) the decision-making representative shall, as soon as may be after his or her appointment, give notice to the care representative and the Executive of his or her appointment and provide him, her or it, as the case may be, with a copy of the decision-making representation order, and

(ii) for as long as the decision-making representation order is in force, and unless otherwise provided for in the decision-making representation order, the care representative shall not act as such, and the order appointing the care representative shall not apply, in respect of the matter.

(3) Where—

(a) a care representative was appointed in respect of a person, and

(b) on or after the relevant date the Director of the Decision Support Service has, under section 71C of the Act of 2015, accepted a notification in relation to an enduring power of attorney where the attorney is not prohibited or restricted by the terms of the power from performing any matter to which section 21 applies and which matter is also specified in the order appointing the care representative,

then—

(i) the attorney shall, as soon as may be after the acceptance by the Director of the notification, give notice to the care representative and the Executive of that acceptance and provide him, her or it, as the case may be, with a copy of the enduring power of attorney, and

(ii) for as long as the enduring power of attorney is in force, the care representative shall not act as such, and the order appointing the care representative shall not apply, in respect of the matter.”,

(c) by the insertion of the following section after section 46:

“Principles with regard to specified persons

46A. (1) Subsections (2) to (7) shall be taken into account by a specified person when acting as such.

(2) A specified person shall not act as such unless it is necessary to do so having regard to the individual circumstances of the person on whose behalf he or she is acting (in this section referred to as the ‘other person’).

(3) An action by a specified person in respect of the other person shall—

(a) be made in a manner that minimises—

(i) the restriction of the other person’s rights, and

(ii) the restriction of the other person’s freedom of action,

(b) have due regard to the need to respect the right of the other person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property,

(c) be proportionate to the significance and urgency of the matter the subject of the action, and

(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the action.

(4) A specified person, when acting as such, shall—

(a) permit, encourage and facilitate, in so far as is practicable, the other person on whose behalf he or she is acting to participate, or to improve his or her ability to participate, as fully as possible, in the action,

(b) give effect, in so far as is practicable, to the past and present will and preferences of the other person, in so far as that will and those preferences are reasonably ascertainable,

(c) take into account—

(i) the beliefs and values of the other person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors that the other person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

(d) unless the specified person reasonably considers that it is not appropriate or practicable to do so, consider the views of any person named by the other person as a person to be consulted on the matter concerned or any similar matter,

(e) act at all times in good faith and for the benefit of the other person, and

(f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant.

(5) The specified person, when acting as such, shall have regard to—

(a) the likelihood of the recovery of the other person’s capacity in respect of the matter concerned, and

(b) the urgency of so acting prior to such recovery.

(6) The specified person, when acting as such—

(a) shall not attempt to obtain personal records relating to the other person or other information to which that person is entitled that is not reasonably required for so acting,

(b) shall not use such records or information for a purpose other than in relation to so acting, and

(c) shall take reasonable steps to ensure that such records or information—

(i) is kept secure from unauthorised access, use or disclosure, and

(ii) is safely disposed of when he or she believes it is no longer required.

(7) In this section, ‘specified person’ has the same meaning as it has in section 47.”,

and

(d) in section 47—

(i) by the substitution of the following subsection for subsection (1):

“(1) Subject to subsections (1A), (2) and (4), a specified person may act on behalf of another person in relation to the following matters under this Act:

(a) an application for a care needs assessment under section 7 and the giving of consent under section 7(13);

(b) a further application for a care needs assessment as referred to in section 8;

(c) an application under section 9 for State support;

(d) the giving of a notice to the Executive under section 24;

(e) a request under section 30 for a review;

(f) an appeal under section 32 against a decision of the Executive;

(g) the provision of any information that the Executive may request, and communication with the Executive, in relation to any of the matters referred to in paragraphs (a) to (f),

where that other person lacks capacity in relation to one or more of the matters referred to in paragraphs (a) to (g).”,

(ii) by the insertion of the following subsection after subsection (1):

“(1A) A specified person shall not act on behalf of another person in relation to any matter referred to in subsection (1) where that other person—

(a) is a ward of court and has a committee duly authorised to act with regard to that matter,

(b) has appointed a person to be his or her attorney under an enduring power of attorney, and—

(i) the attorney is not prohibited or restricted by the terms of the power from performing that matter, and

(ii) either—

(I) the enduring power of attorney has been registered under the Powers of Attorney Act 1996 and the registration has not been cancelled, or

(II) the Director of the Decision Support Service has accepted a notification of the enduring power of attorney under section 71C of the Assisted Decision-Making (Capacity) Act 2015 (in this section referred to as the ‘Act of 2015’) and this acceptance is in force,

or

(c) the court has made a decision-making order under section 38(2) of the Act of 2015 which relates to that matter, or has made a decision-making representation order under that section conferring functions with regard to that matter on a decision-making representative.”,

(iii) in subsection (7)—

(I) by the deletion of paragraphs (a) and (b),

(II) in paragraph (e), by the substitution of “child” for “relative”, and

(III) by the deletion of paragraphs (f) and (g),

(iv) by the insertion of the following subsection after subsection (7):

“(7A) A person—

(a) who is acting as a specified person within the meaning of paragraphs (e) to (g) of subsection (7) immediately before the date of the coming into operation of section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022, and

(b) who, on or after that date, and but for this subsection, would no longer be able to act in light of the amendments to those paragraphs made by the said section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022,

may, notwithstanding the amendments effected to those paragraphs by the said section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022, continue to act as a specified person unless and until the person on whose behalf the specified person is acting becomes a person to whom subsection (1A) applies.”,

(v) in subsection (8)—

(I) by the substitution of “category of person who” for “categories of person who”,

(II) by the substitution of “paragraph (c)” for “paragraphs (a), (b) and (c) ”, and

(III) by the substitution of “paragraph (c)” for “paragraphs (a) to (c)”,

and

(vi) in subsection (9), by the deletion of paragraphs (aa) and (b).