This document outlines proposed legislation around assisted decision-making and capacity in Ireland. It discusses key definitions, including the definition of capacity and lack of capacity. It establishes statutory principles for interventions, including presuming capacity, using all practical steps to help a person make a decision before considering them incapable, and not considering a person incapable due to an unwise decision. It discusses mechanisms for decision-making, including advance decisions, enduring powers of attorney, decision-making orders, representatives, and informal decision-making assistance. Scenarios are provided to illustrate applications of the legislation.

1. Assisted Decision-Making (Capacity)
Bill 2013
Anselm Eldergill

2. Headings
1 Introduction
2 Definitions
3 Capacity
4 Statutory principles
5 Statutory mechanisms
6 Assistance agreements and co-decision-making
Anselm Eldergill

3. §1 — INTRODUCTION
Anselm Eldergill

4. Capacity
 Is the legal ability to bear and exercise rights or
to be affected by legal duties or liabilities.
RIGHTS CAPACITY
 Capacity to have and exercise rights, e.g. voting,
agreeing contracts, making a will.
LIABILITY CAPACITY (RESPONSIBILITIES)
 Capacity to be held legally liable for contracts,
torts, crimes, etc.
Anselm Eldergill

5. Individual responsibility
‘The counterpart of
freedom and autonomy
is accountability for acts
freely and
autonomously done.’
Anselm Eldergill

6. AUTONOMY
CAPACITY
for autonomous action
FREEDOM
to act autonomously
Requires
Reduced by
LACK OF CAPACITY
for autonomous action
RESTRAINTS
on autonomous action
Eldergill
Liberal obligations
Anselm RISK-BASED, JUST,
LIBERAL, RULE OF LAW BENEFICENCE
Substitute decision
Practical assistance

7. Liberty, treatment, safety
 “The extent of a people's liberty to choose
to live as they desire must be weighed
against the claims of many other values, of
which equality, or justice, or happiness, or
security, or public order are perhaps the
most obvious examples.” (Berlin)
 Ultimately, whether individuals “should be
allowed certain liberties at all depends on
the priority given by society to different
values and the crucial point is the criterion
by which it has to be decided that a
particular liberty should or should not be
allowed, or that its exercise is in need of
restraint.” (Dias)

8. Laws should be
 A last resort
 Impose minimum powers, duties and rights
 Unambiguous
 Just
 As short as possible
 In plain English
 provide a mechanism for enforcing duties
 provide a remedy when powers are exceeded
Anselm Eldergill

9. §2 — DEFINITIONS

10. Definitions
Decision ‘includes a class of decisions’
Intervention ‘an action taken under this Act … in respect of the RP
by the court or High Court
Relevant person (a) a person whose capacity is being called into
question or may shortly be called into question in
respect of one or more than one matter, and includes
such a person who is—
(i) an appointer, or
(ii) the donor of an enduring power of attorney,
(b) a person who lacks capacity in respect of one or
more than one matter in accordance with the
provisions of this Act, or
(c) a person who falls within paragraphs (a) and (b)
at the same time but in respect of different matters,
as the case requires.
Anselm Eldergill

11. §3 — CAPACITY
Anselm Eldergill

12. Assessing capacity
3.—(1) Subject to subsections (2) to
(6), for the purposes of this Act
(including for the purposes of
creating a decision-making
assistance agreement, co-decision-making
agreement or enduring
power of attorney), a person’s
capacity shall be assessed on the
basis of his or her ability to
understand the nature and
consequences of a decision to be
made by him or her in the context of
the available choices at the time the
decision is made.
Anselm Eldergill

13. Lack of capacity ‘to make a
decision’
3.—(2) A person lacks the capacity to make a decision if he
or she is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of
making the decision, or
(d) to communicate his or her decision (whether by talking,
writing, using sign language, assisted technology, or any
other means) or, if the implementation of the decision
requires the act of a third party, to communicate by any
means with that third party.
Anselm Eldergill

14. AAnn iimmppaaiirrmmeenntt
ooff,, oorr aa
ddiissttuurrbbaannccee iinn
tthhee ffuunnccttiioonniinngg
ooff,, tthhee mmiinndd oorr
bbrraaiinn
 IItt ddooeess nnoott
mmaatttteerr wwhheetthheerr
tthhee iimmppaaiirrmmeenntt
oorr ddiissttuurrbbaannccee
iiss ppeerrmmaanneenntt oorr
tteemmppoorraarryy..
TThhee ppeerrssoonn iiss
uunnaabbllee ttoo mmaakkee aa
ddeecciissiioonn iinn
rreellaattiioonn ttoo tthhee
mmaatttteerr ffoorr
hheerr//hhiimmsseellff
uunnaabbllee ttoo rreettaaiinn tthhaatt
iinnffoorrmmaattiioonn
uunnaabbllee ttoo ccoommmmuunniiccaattee
tthheeiirr ddeecciissiioonn ((wwhheetthheerr
bbyy ttaallkkiinngg,, uussiinngg ssiiggnn
llaanngguuaaggee oorr aannyy ootthheerr
mmeeaannss))..
.. .
uunnaabbllee ttoo uunnddeerrssttaanndd tthhee
iinnffoorrmmaattiioonn rreelleevvaanntt ttoo
tthhee ddeecciissiioonn,,
uunnaabbllee ttoo uussee oorr wweeiigghh
tthhaatt iinnffoorrmmaattiioonn aass ppaarrtt
ooff tthhee pprroocceessss ooff
mmaakkiinngg tthhee ddeecciissiioonn,,
Compare with 2005 Act
There is no reference in the 2013 Bill to an impairment or
disturbance in the functioning of the mind or brain being the cause
of the person’s inability to make a decision. Is this of any practical
significance in terms of the range of people or actions covered? Does
this stray into inherent-jurisdiction type cases?

15. 15
SScceennaarriiooss
 Emma is in a violent and abusive relationship from which
she seems unable to extricate herself. She will not or cannot
apply for an injunction.
 John has an IQ of 80. He refuses cardiac surgery which the
consultant tells him is necessary to address a significant risk
of a fatal heart attack.
 John is aged 18. He is extremely immature for his age. He
does not want to go to college to continue training. His
teachers and family are concerned by his failure to
understand the likely consequences of this.
Anselm Eldergill

16. Autonomy and capacity
 An individual who is
able to understand
and retain the
information relevant
to the decision is
nevertheless still
incapacitated if s/he
is ‘unable to make a
decision based on
that information’.
Example
“some people may be unable
to exert their will … because
of delusions or compulsions or
[some] other reason
connected with their
disability. The schizophrenic
who cannot believe what his
doctors … tell him is one
example.” (Who Decides,
p.13).

17. §4 — STATUTORY PRINCIPLES

18. Statutory principles
2013 Bill 2005 Act
1 ‘8.—(2) It shall be presumed that a [person whose
capacity is being called into question or may shortly be
called into question …] has capacity in respect of the
matter concerned unless the contrary is shown in
accordance with the provisions of this Act.’
Same
2 ‘8.—(3) A [person whose capacity is being called into
question or may shortly be called into question …] shall
not be considered as unable to make a decision in
respect of the matter concerned unless all practicable
steps have been taken, without success, to help him or
her to do so.
Same
3 ‘8.—(4) A [person whose capacity is being called into
question or may shortly be called into question …] shall
not be considered as unable to make a decision in
respect of the matter concerned merely by reason of
making, having made, or being likely to make, an
unwise decision.’
Same

19. Statutory principles
2013 Bill 2005 Act
4 ‘8.—(5) There shall be no intervention in
respect of a relevant person unless it is
necessary to do so having regard to the
individual circumstances of the relevant
person [RP].’
AAnn aacctt ddoonnee,, oorr ddeecciissiioonn
mmaaddee,, uunnddeerr tthhee AAcctt ffoorr oorr
oonn bbeehhaallff ooff aa ppeerrssoonn wwhhoo
llaacckkss ccaappaacciittyy mmuusstt bbee
ddoonnee,, oorr mmaaddee,, iinn hhiiss bbeesstt
iinntteerreessttss..
5 ‘8.—(6) An intervention in respect of a
relevant person shall—
(a) be made in a manner that minimises—
(i) the restriction of the RP’s rights, and
(ii) the restriction of the RP’s freedom of
action, and
(b) have due regard to the need to respect
the right of the RP to his or her dignity,
bodily integrity, privacy and autonomy.’
BBeeffoorree tthhee aacctt iiss ddoonnee,, oorr
tthhee ddeecciissiioonn iiss mmaaddee,,
rreeggaarrdd mmuusstt bbee hhaadd ttoo
wwhheetthheerr tthhee ppuurrppoossee ffoorr
wwhhiicchh iitt iiss nneeeeddeedd ccaann
bbee aass eeffffeeccttiivveellyy aacchhiieevveedd
iinn aa wwaayy tthhaatt iiss lleessss
rreessttrriiccttiivvee ooff tthhee ppeerrssoonn’’ss
rriigghhttss aanndd ffrreeeeddoomm ooff
aaccttiioonn..
Anselm Eldergill

20. Wishes, beliefs and feelings
2013 Bill 2005 Act
‘8.—(7) The intervener, in making an intervention in
respect of a relevant person, shall— …
(b) give effect, in so far as is practicable, to the past
and present will and preferences of the relevant
person, in so far as that will and those preferences are
reasonably ascertainable,
(c) take into account—
(i) the beliefs and values of the relevant person (in
particular those expressed in writing), in so far as
those beliefs and values are reasonably ascertainable,
and
(ii) any other factors which the relevant 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’
The person determining what is
in the individual’s best interests
must consider all the relevant
circumstances and, in
particular, must …
Consider, so far as is
reasonably ascertainable, the
person’s past and present
wishes and feelings (and, in
particular, any relevant written
statement made by him when
he had capacity); the beliefs
and values that would be likely
to influence his decision if he
had capacity; and the other
factors that he would be likely to
consider if he were able to do
so.

21. §5 — STATUTORY MECHANISMS

22. Statutory mechanisms
2005 Act
 Advance decisions (to
refuse treatment)
 Lasting Powers of
Attorney (PW and P&A)
 Court orders
 Court appointed
deputies
 Section 5 (PW
informal)
2013 Bill
 To be inserted in the
Bill
 Enduring Powers of
Attorney (PW and P&A)
 Decision-making order
 Decision-making
representative order
 Informal decision-making
(PW)
=
=
=
=
=
- Decision-making
assistance agreements
- Co-decision-making
agreements and orders

23. 23
SScceennaarriioo –– AAddvvaannccee ddeecciissiioonn
Mr Smith has suffered from schizophrenia for many
years. He has been detained on a number of
occasions. His consultant prescribes him Impotentox
when he is acutely unwell. This has very unpleasant
side-effects for him. He makes an advance decision
refusing the treatment in the event he becomes
incapacitated. A year later, he relapses and is
admitted to hospital informally. His consultant
considers that he requires a course of Impotentox.

24. 24
SScceennaarriioo –– EEPPAA((11)
 Mr Jones has a long history of schizophrenia and many
negative symptoms. He makes an EPA authorising his friend
Emma to make personal welfare decisions for him should he
become incapacitated. A year later, he is admitted to hospital
informally and accepts treatment without really
understanding what it is for. It is common ground that he is
now incapacitated and Emma refuses her consent to him
being given Impotentox.
Anselm Eldergill

25. 25
SScceennaarriioo –– EEPPAA((22))
 Mr Jones has a long history of schizophrenia and many
negative symptoms. He makes an EPA authorising his friend
Emma to make personal welfare decisions for him should he
become incapacitated. A year later, he relapses and is
admitted to hospital, but refuses Impotentox. His consultant
and Emma take the view that he is now incapacitated. She
consents to him being given Impotentox, if necessary using
restraint.
Anselm Eldergill

26. Informal decision-making (PW)
An Informal decision-maker (‘IDM’) may take or authorise the taking
of an action in respect of the personal welfare (including healthcare
and treatment) of a relevant person [someone who lacks capacity or
whose capacity is being, or may shortly be, called into question]
provided that:
• The Act does not conflict with a relevant decision made by (i)
the RP themselves with a co-decision-maker or with the
assistance of a decision-making assistant; or by (ii) a decision-making
representative; or by (iii) an attorney, which the IDM
has knowledge of or ought reasonably to have knowledge of.
• If the act is intended to restrain the person, sub-ss. 27(5)-(8)
are satisfied.
• The matter is not one reserved to the High Court (non-therapeutic
sterilisation, withdrawal of artificial life-sustaining
treatment, the donation of an organ) or closely connected to
such a matter.

27. Compare with the 5 SSeeccttiioonn 55 CCoonnddiittiioonnss
11 The act is one undertaken ‘in connection with’ another’ person’s care or
22 The person doing it takes reasonable steps to establish whether the
recipient has capacity;
33 S/he reasonably believes that the recipient lacks capacity;
44 S/he reasonably believes that it is in their best interests for act to be
55 If s/he uses restraint, s/he reasonably believes BOTH that it is
necessary to do the act in order to prevent harm to the person and that
the act is a proportionate response to the likelihood of their suffering
harm and the seriousness of that harm.
DEFINITION OF RESTRAINT
treatment;
done;
FFoorr tthheessee ppuurrppoosseess,, aa ppeerrssoonn rreessttrraaiinnss aannootthheerr ppeerrssoonn iiff hhee ((aa)) uusseess,, oorr tthhrreeaatteennss ttoo uussee,, ffoorrccee ttoo sseeccuurree tthhee
ddooiinngg ooff aann aacctt wwhhiicchh ss//hhee rreessiissttss,, oorr ((bb)) rreessttrriiccttss tthheeiirr lliibbeerrttyy ooff mmoovveemmeenntt,, wwhheetthheerr oorr nnoott tthheeyy rreessiisstt..

28. 28
SScceennaarriioo –– IInnffoorrmmaall ddeecciissiioonnss
 Ms Fox has a profound learning disability
and epilepsy. She is aged 17 and is being
cared for in specialist accommodation
during the week. Sometimes restraint is
necessary to get her to take medication.
Is this lawful?
 Ms Fox returns home at weekends. Can
her parents use restraint where this is
necessary in order to get her to take her
medication?
Anselm Eldergill

29. SScceennaarriiooss
 A naso-gastric tube is inserted in order
to treat an informal patient who suffers
from anorexia nervosa.
Anselm Eldergill

30. SScceennaarriioo
The local mental health Crisis Resolution
Team is visiting Ms Thomas at her home.
She has been referred to the team as an
alternative to formal admission to
hospital. She says that she does not
want to take medication. A syrup is given
to her by a member of the team who
says restraint can be used if she resists.
Anselm Eldergill

31. §6 — DECISION-MAKING ASSISTANCE
AGREEMENTS & CO-DECISION-MAKING
Anselm Eldergill

32. A mezzanine?
Advance decisions
LPAs (PW and P&A)
Section 5 (PW informal)
Court orders
Court appointed deputies
Decision-making
assistance agreements
Co-decision-making
agreements and orders
LPAs: subject to any conditions or
restrictions, and PW LPA authority
subject to lack of capacity
Court’s powers subject to capacity,
deputy’s subject to capacity and
any LPA
Anselm Eldergill

33. Trumps are …
Mechanism Trumped by:
• Informal decision-making
(PW)
•Not authorised to take or authorise an action which conflicts
with a relevant decision made by (i) the RP with a co-decision-
maker or with the assistance of a decision-making
assistant; (ii) a decision-making representative; (iii) an
attorney.
•Decision-making
ASSISTANCE
agreements
• With regard to relevant decision(s), ‘invalidated’ by a
subsequent a co-decision-maker, decision-making
representative or attorney
•Co-decision-MAKING
agreements
•With regard to relevant decision(s), ‘invalidated’ by a
subsequent a decision-making representative or attorney
• Decision-making
representative order
• Powers, duties and conditions are specified by the court
in the order appointing the representative, and
representative may not exercise any power exercisable
by an attorney
• Attorney • May be removed by the court in limited circumstances
• Decision-making
order
• Subject to statutory principles and statutory framework
Anselm Eldergill

34. Decision-making assistance agreements
Appointer Appointee Functions Notes
Appointer (an
Decision-making
 To assist appointer re
adult who
Assistant
making decisions on
considers that
PW [s.25(a)] and/or
their capacity is,
PA [s.26(1)(a)]
or may shortly
 Explain relevant info
be, in question)
and considerations;
ascertain and help to
communicate
appointer’s ‘will and
preferences’; assist
appointer to obtain
information and
personal records s/he
is entitled to; assist
appointer to ‘make and
express’ a relevant
decision, and
endeavour to ensure
that relevant decisions
are implemented.
 Agreement must
comply with regs.
 Will (it appears) be
in writing with notice
of agreement to the
PG
 Agreement is
partially or wholly
‘invalidated’ by a
subsequent co-decision
maker,
decision-making rep
or attorney covering
the relevant
decision or all
relevant decisions
(s.10(5).

35. Co-decision-making agreements
Appointer Appointee Functions Notes
Appointer (an
Co-decision-maker
21.—(1) … The co-decision-maker
adult who
shall advise the appointer
considers that
their capacity is,
or may shortly
be, in question)
respecting … relevant decisions,
…shall share the authority to
make relevant decisions, and
may do all things necessary ‘to
give effect to the authority vested
in him or her.’
Explain relevant info and
considerations; ascertain and
help to communicate appointer’s
‘will and preferences’; assist
appointer to obtain information
and personal records s/he is
entitled to; assist appointer to
‘make and express’ a relevant
decision, and endeavour to
ensure that relevant decisions are
implemented.
Anselm Eldergill

36. Declarations under section 15(1)
Anselm Eldergill
s.15—(1) ‘The
relevant person
lacks capacity to
make one or more
than one decision
specified in the
application relating
to their PW or PA
(a) UNLESS
(b) EVEN IF
the assistance of a
suitable person as a
co-decision-maker
is made available to
him or her’
s.17(5) The parties to the agreement (RP
and co-decision-maker) consent
to the making of the order
s.17(2) The agreement is made in
accordance with the Act
s.17(2) The agreement is made in
accordance with the will and
preferences of the RP
s.17(5) There is presently no decision-making
agreement but the court
is satisfied both that the RP has
capacity to appoint a co-decision-maker
or that a suitable person is
willing to be appointed.
s.17(5),
s.20
The parties to the agreement (RP
and co-decision-maker) do not
consent to the making of the order
or the appointee is ineligible
s.17(5) There is presently no decision-making
agreement and the court
is either not satisfied that the RP
has capacity to appoint a co-decision-
maker or that a suitable
person is willing to be so
appointed
Court is able
to make such
an order
Court is
unable to
make such
an order
DECISION-MAKING ORDER or
DECISION-MAKING REP ORDER

37. Court applications under Part 4
EX PARTE LEAVE
TO APPLY NOT
REQUIRED BY
 Relevant person or
their spouse/civil
partner, decision-making
assistant, co-decision
maker,
decision-making rep,
attorney
 Person specified in a
court order
 Public Guardian
THE APPLICATION
14.—(5) An application to the court … (including an
ex parte application …) shall state—
(a) the applicant’s connection with the relevant
person,
(b) the benefit to the relevant person sought to be
achieved by the application, and
(c) the reasons why the application is being made, in
particular—
(i) the reason why the benefit to the relevant person
sought to be achieved has failed to be achieved in
any other appropriate and practicable manner taken
prior to the making of the application, and
(ii) the reason why, in the opinion of the applicant, no
other appropriate and practicable manner to achieve
that benefit remains to be taken prior to the making
of the application.

38. High Court
 Non-therapeutic
sterilisation
 Withdrawal of artificial
life-sustaining
treatment
 The donation of an
organ
 EPA jurisdiction
Section 4 and Part 6
Circuit Court
 Exclusive jurisdiction
in all other respects.
38
Jurisdiction of the courts
Anselm Eldergill

39. 39
Effect of co-decision-making order
Section Provision
s.17(3)(a) [Where a court makes a declaration under s.15(1)(a)] ‘A
co-decision-making agreement has no effect unless it is
the subject of a co-decision-making order.’
s.17(4) Where the court makes a co-decision-making order, ‘a
relevant decision made otherwise than jointly by the RP
and the co-decision-maker is void’.
s.17(6) The court may vary or discharge a co-decision-making
order of its own motion or on application to it.
s.17(7) The Act provides for reviews of such orders after
approximately one year and then every 3 years.
s.17(9) The court may revoke or vary an order if satisfied that a
co-decision-maker is behaving/proposes to behave
outside their authority or in a manner that is not in ‘the
interests’ of the RP.
s.17(3) Once an order is in place, an agreement cannot be varied
or revoked except by court order (upon an application)

40. 40
Events following the making of the order
EVENT: s17(10)
The court is satisfied that:
(a) the relevant person’s capacity to make a
relevant decision has improved to the extent that
he or she no longer requires the assistance of the
co-decision-maker for that relevant decision,
(b) the relevant person’s capacity to make a
relevant decision has deteriorated to the extent
that he or she is unable to make that relevant
decision even when assisted by the co-decision-maker,
(c) the relationship between the relevant person
and the co-decision-maker has broken down,
(d) the relevant person is unable, unwilling or
refusing to accept the assistance of the co-decision-
maker, or
(e) the co-decision-maker is unable, unwilling or
refusing to continue as such co-decision-maker.
CONSEQUENCE: s.17(11)
The court may:
(a) revoke the co-decision-making order
concerned, or
(b) vary the terms of the co-decision-making
order relating to the appointment
of the co-decision-maker under the co-decision-
making agreement which
appointed the co-decision-maker.
(12) The court, on making an order under
this section which has the effect of
revoking its approval of the appointment
of a co-decision-maker for a relevant
person under a co-decision-making
agreement, shall, where the court
considers it necessary, make further
orders under this Part in respect of the
relevant person.
Anselm Eldergill

41. 41
How are co-decisions actually made?
 17-(4) Where the court makes a co-decision-
making order in respect of
a co-decision-making agreement, a
relevant decision made otherwise
than jointly by the relevant person
and the co-decision-maker is void.
 18-(13) A relevant decision made in
good faith jointly by the appointer
and the co-decision-maker for the
appointer shall be considered to
have been made by the appointer.
 21-(2) Where a relevant decision
made by the appointer and a co-decision-
maker for the appointer
requires the signing of any
document for its implementation,
the document is void unless the
appointer and the co-decision-maker
co-sign the document.
ACQUIESCENCE
 19.—A co-decision-maker for the
appointer shall acquiesce in a
relevant decision made by the
appointer and shall not refuse to
sign a document referred to in
section 21(2) if the following 2
conditions are met:
 (a) a reasonable person could have
made that relevant decision; and
 (b) no harm to the appointer or any
other person is likely to result from
that relevant decision.

42. Co- ?
 Joint? Joint decision?
 Co-executors
 Co-attorney
 Smith & Co.
 Co-worker
 Cohabit
 Co-operate
Anselm Eldergill
‘Co-decision-maker’

43. Victorian Law Reform Commission
 In a consultation paper, the Commission proposed the
introduction of a new co-decision making appointment to help
people in need of assistance with decision making.
 Some groups supported the entire continuum of decision-making
appointments proposed by the Commission, including
co-decision makers. However, responses were mixed.
Concerns
 The Mental Health Legal Centre indicated that while they
initially supported the proposal for co-decision makers,
negative consumer feedback and concerns about the
potential for abuse had changed their view.
 Victoria Legal Aid expressed concern that a co-decision-making
arrangement has the potential to be an ‘uneven
partnership’, where the co-decision maker may heavily
influence the person with a disability to agree with a decision
that the co-decision maker thinks is appropriate in the
circumstances.
Victorian Law Reform Commission – Guardianship: Final Report, 2012
Anselm Eldergill

44. Victorian Law Reform Commission
 The Federation of Community Legal Centres shared Victoria
Legal Aid’s concerns, and argued that ‘the co-decision making
model … seems likely to increase complexity without much
associated benefit’.
Commission itself in favour
 The Commission itself supported the introduction of co-decision-making:
‘Co-decision making is qualitatively different to substitute
decision making because the person with impaired decision-making
ability continues to have legal responsibility for decisions
about their own affairs, even though those decisions require the
agreement of another person.
Difficulties to consider
 However, there were a number of ‘challenges’:
 ‘complexity, and potential confusion … Defining the meaning of a
‘joint’ decision, identifying the potential users … and describing
the responsibilities of third parties who transact with co-decision
makers are all important challenges.’
Victorian Law Reform Commission – Guardianship: Final Report, 2012 Anselm Eldergill

45. Victorian Law Reform Commission
 ‘… the co-decision maker may be in a position to exert
significant influence over a person with impaired decision-making
ability. This creates the potential for abuse. In
circumstances where a person’s decision-making ability
fluctuates considerably, it may also be difficult for co-decision
makers to determine whether a decision has been jointly
made, or whether it is really a substitute decision.
Liability to third parties
 ‘Third parties will need to decide how they wish to deal with
co-decision makers.’
 To ensure the effectiveness of co-decision-making
arrangements, the law should state that decisions made and
actions taken by the co-decision maker and the represented
person within the scope of their joint arrangement should be
treated as if they were acts of the represented person with
capacity.’
Victorian Law Reform Commission – Guardianship: Final Report, 2012
Anselm Eldergill

46. Victorian Law Reform Commission
Capacity needed to make a co-decision making agreement
 ‘Before making a co-decision-making order, [the tribunal]
must be satisfied that it is unlikely that a person has the
capacity to make the relevant decisions alone, and is in need
of a co-decision maker. It is therefore necessary that the law
specify that the person is deemed to lack capacity to make
the relevant decisions without the support of a co-decision
maker.’
Liability of the appointee
 ‘… because the role is an unpaid, altruistic one, the
Commission believes that the law should provide legal
immunity for co-decision makers who have acted in good
faith, within the terms of their appointment, and in
accordance with their legal responsibilities. Any claim or
action arising out of a co-decision-making arrangement
should ordinarily be a claim against the estate of the person
supported under that arrangement.’
Victorian Law Reform Commission – Guardianship: Final Report, 2012 Anselm Eldergill